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740 P.2d 1163 (1987)
106 N.M. 179
GRAND LODGE OF ANCIENT AND ACCEPTED MASONS OF NEW MEXICO; Scottish Rite Cathedral Association of Las Cruces, Inc.; Santa Fe Lodge of Perfection No. 1, Inc.; and York Rite Corporation, Inc., Plaintiffs-Appellees,
v.
TAXATION AND REVENUE DEPARTMENT OF THE STATE OF NEW MEXICO, Defendant-Appellant.
No. 8583.
Court of Appeals of New Mexico.
June 18, 1987.
Certiorari Denied August 14, 1987.
Gerald R. Bloomfield, Tara Selver, Kool, Kool, Bloomfield & Hollis, P.A., Albuquerque, for plaintiffs-appellees.
Hal Stratton, Atty. Gen., Gerald B. Richardson, Sp. Asst. Atty. Gen., Taxation and Revenue Dept., Santa Fe, for defendant-appellant.
OPINION
MINZNER, Judge.
The Taxation and Revenue Department (department) appeals from a judgment declaring all properties owned by Masonic lodges exempt from property taxes under the New Mexico Constitution, article VIII, Section 3. The department contends that the trial court applied an erroneous standard of law in concluding that the properties are tax-exempt, and that under the correct standard, the Masonic lodges are not used for educational or charitable purposes. See id. We reverse and remand with instructions to dismiss the petition for lack of jurisdiction.
BACKGROUND
The record indicates that properties owned by Masonic lodges in New Mexico have not been assessed for a number of *1164 years, on the ground that the properties are used for charitable or educational purposes. Beginning with the 1983 tax year, the legislature required that non-governmental entities claim the exemptions by filing proof of eligibility with the county assessor; however, once allowed, the exemptions need not be claimed again until there is a change in eligibility. See NMSA 1978, § 7-38-17(C), (F) (Repl. 1986). If claims for exemptions were not filed by the last day of February 1983, the property was presumed not to be exempt and was taxed.
In response to a request for a ruling concerning property owned by Sacramento Lodge No. 24, located in Alamogordo, the department concluded that this property is not used for educational or charitable purposes within the meaning of article VIII, Section 3. The ruling, P.T.D. Ruling No. 83-02, also stated that each request for property tax exemption must be evaluated on its own facts and that other cases, while illustrative, are not controlling. The ruling therefore held that Temple Lodge No. 6, A.F. & A.M. v. Tierney, 37 N.M. 178, 20 P.2d 280 (1933) is not dispositive of the facts presented by the Sacramento Lodge.
Subsequently, four groups of Masons, representing all of the Masonic lodges in New Mexico, filed a petition for declaratory judgment in district court. The petition states that, since the ruling, many county assessors have issued notices to lodges that their properties are no longer exempt, and it is anticipated that such assessments will soon be made on a statewide basis. The petition asked the district court to issue a declaratory judgment that all Masonic lodges affiliated with any of the petitioners are exempt from property taxes, contrary to the ruling. The court issued an order staying any further notices of assessment on Masonic properties, and any administrative proceedings involving notices and protests filed pursuant thereto, until a final determination was made with respect to the taxability of the properties. After trial, the court entered findings and conclusions which did not differentiate among the associated lodges and an order granting petitioners tax-exempt status, on the ground that their operations are both educational and charitable in nature. The department appeals this order.
The record does not reflect that exemptions have been denied to any lodge other than Sacramento Lodge No. 24. In fact, P.T.D. Ruling No. 83-03 states that "[e]ach request for property tax exemption under Article VIII, § 3 of the New Mexico Constitution must be evaluated on its own facts, and other cases, although illustrative, are not controlling." Fifty-seven other lodges were involved in the litigation in district court. Based on the allegations in the petition, they had not all been assessed.
After this case was submitted to this panel for decision, the court requested supplemental briefing on the jurisdiction of the district court to enter the order from which the department appeals. See State ex rel. Overton v. New Mexico State Tax Comm'n, 81 N.M. 28, 462 P.2d 613 (1969). We asked the parties to discuss the jurisdiction of the district court with respect to the lodges other than Sacramento Lodge No. 24, it appearing that there is at present no actual controversy as to them; and as to Sacramento Lodge No. 24, whether the trial court lacked jurisdiction because this lodge had not exhausted its administrative remedies. For the following reasons, we now reverse.
DISCUSSION
The petition was filed pursuant to the Declaratory Judgment Act. See NMSA 1978, Sections 44-6-1 to -15. Under the act, district courts can declare rights, status, and other legal relations "[i]n cases of actual controversy." § 44-6-2. There must be an actual controversy before a court has jurisdiction to hear a declaratory judgment action. State ex rel. Overton v. New Mexico State Tax Comm'n. The supreme court has held that the elements of actual controversy for this purpose are:
[(1)] a controversy involving rights or other legal relations of the parties seeking declaratory relief; [(2)] a claim of right or other legal interest asserted against one who has an interest in contesting the claim; [(3)] interests of the *1165 parties must be real and adverse; and [(4)] the issue involved must be ripe for judicial determination.
Sanchez v. City of Santa Fe, 82 N.M. 322, 324, 481 P.2d 401, 402 (1971).
In addition to the statutory requirement of actual controversy, case law holds that the district court does not have jurisdiction over a declaratory judgment action unless the parties have first exhausted any administrative remedies. See State Racing Comm'n v. McManus, 82 N.M. 108, 476 P.2d 767 (1970). This is analogous to the procedural rule which precludes appellate review prior to a final judgment of the trial court. Cf. Illinois Bell Tel. Co. v. Allphin, 60 Ill.2d 350, 326 N.E.2d 737 (1975) (holding that as no hearing had yet been held and no formal final assessment had issued, the revenue department had not reached a final administrative decision; thus, under the state administrative act, the agency's notice of tax liability will not be reviewable).
Actions for declaratory judgment were not intended as a substitute for statutory judicial review of administrative action. Hays v. City & County of Denver, 127 Colo. 154, 254 P.2d 860 (1953); V-1 Oil Co. v. County of Bannock, 97 Idaho 807, 554 P.2d 1304 (1976). They should not be used to usurp or replace specific administrative relief. City of Cheyenne v. Sims, 521 P.2d 1347 (Wyo. 1974). The theory which underlies administrative law is that the issues with which it deals ought to be decided by experts. Weyerhaeuser Timber Co. v. Galloway, 168 Or. 85, 121 P.2d 469 (1942).
The supreme court has held that before resort to a court of equity can be had for relief from discriminatory taxation, the complaining taxpayer must have either no adequate legal or statutory remedy, or he must have first exhausted the same without avail. First National Bank of Raton v. McBride, 20 N.M. 381, 149 P. 353 (1915). This doctrine was extended to declaratory judgments in Associated Petroleum Transp., Ltd. v. Shepard, 53 N.M. 52, 201 P.2d 772 (1949).
Consequently, the declaratory judgment statute must be read in tandem with statutes providing judicial review of administrative actions. Chesapeake and Potomac Co. v. State Tax Dep't, 161 W. Va. 77, 239 S.E.2d 918 (1977). Whether statutory relief is exclusive depends on legislative intent. See E. Borchard, Declaratory Judgments 344 (2d ed. 1941). Where there is a complete remedy otherwise provided by statute, and obviously intended to be exclusive, the issue is not subject to disposition by declaratory judgment. Crews v. Collins, 252 Iowa 863, 109 N.W.2d 235 (1961). See generally 2 F. Cooper, State Administrative Law 605-611 (1965) (discussing the rule that where a statutory method of review is provided, that method is exclusive); Annot., Tax Questions as Proper Subject of Action for Declaratory Judgment, 11 A.L.R.2d 359 (1950).
We doubt that an actual controversy exists as to those lodges other than Sacramento Lodge No. 24. Any injury to those lodges is speculative, based on the assumption that they will be assessed, and they are seeking in effect an advisory opinion. Cf. Sanchez v. City of Santa Fe (where defendants required plaintiffs to pay fee and plaintiffs refused to do so, an actual controversy existed). However, we are persuaded that the dispositive issue is whether there is an adequate remedy other than declaratory judgment, which all petitioners have failed to pursue. We conclude that there is.
The power to grant or deny exemptions lies with the county assessors and the Property Tax Division. See NMSA 1978, §§ 7-38-22, -24 (Repl. 1986). The denial of an exemption by the county assessor may be reviewed by a county valuation protests board. NMSA 1978, § 7-38-27 (Repl. 1986). Orders resulting from these reviews may be appealed to this court. NMSA 1978, § 7-38-28 (Repl. 1986). A property owner also may protest by filing a claim for refund after paying the taxes alleged to be due. See NMSA 1978, § 7-38-21 (Repl. 1986).
The department contends that there is no provision for protesting the denial of an exemption by ruling. See NMSA 1978, § 7-1-5(B)(2) (Repl. 1986). The record supports *1166 a conclusion that petitioners in effect were attempting to protest the ruling by bringing a petition for declaratory judgment. The complaint expressly states, however, that the ruling "constitutes a substantial departure from prior authority and the long standing past practice followed ... statewide ... pursuant to judicial precedent... ." For this reason, the complaint also in effect asks the district court to construe the ruling as beyond the department's authority. See Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483 (1939). A party will not be required to exhaust the administrative procedures if there is no adequate administrative remedy. See State ex rel. Maloney v. Sierra, 82 N.M. 125, 477 P.2d 301 (1970).
Assuming that there is no method for reviewing a ruling, that is not dispositive. A ruling, by its statutory definition, is in the nature of an interlocutory decree or advisory opinion. See § 7-1-5(B)(2). The legislature has provided a comprehensive scheme for protesting department and county actions. In not providing more specifically for judicial review of a ruling, we understand the legislative intent to be that the ruling should be applied before it is reviewed, in the absence of some applicable exception. See § 7-1-5(G). Compare Verkouteren v. Supervisor of Assessments, 38 Md. App. 216, 380 A.2d 642 (1977) (relying on the state statutory provision governing declaratory judgments) with Peterson Properties, Del Rio Plaza Shopping Center v. Valencia County Valuation Protests Bd., 89 N.M. 239, 549 P.2d 1074 (Ct. App. 1976) (administrative board's oral statement of the reasons it was going to make a certain decision was not an appealable final order).
Petitioners concede that the Property Tax Code, see NMSA 1978, Section 7-35-1 (Repl. 1986), makes tax-exempt status available on an individual basis. See Temple Lodge No. 6 v. Tierney. An exemption dependent on the use of property is solely a question of fact. City of Cheyenne v. Sims. Our cases have been consistent in this respect. See Benevolent and Protective Order of Elks, Lodge No. 461 v. New Mexico Property Appraisal Dep't, 83 N.M. 445, 493 P.2d 411 (1972) (determination whether property is used for charitable purposes must necessarily depend on the uses being made of each property which is claimed to come within the exemption; except to the extent that the facts as to use are so nearly alike as to logically compel like results, no case can be said to constitute a controlling precedent for another case in this area); Santa Fe Lodge No. 460, B.P.O.E. v. Employment Sec. Comm'n, 49 N.M. 149, 159 P.2d 312 (1945) (confining decision to facts); Albuquerque Lodge, No. 461, B.P.O.E. v. Tierney, 39 N.M. 135, 42 P.2d 206 (1935) (decision not making a precedent even for other cases involving properties of the B.P.O.E. except as the proven facts disclose a similar use); Albuquerque Alumnae Ass'n of Kappa Kappa Gamma Fraternity v. Tierney, 37 N.M. 156, 20 P.2d 267 (1933). They argue, however, that the statutory remedy is inadequate when the resolution as to every lodge turns on a single common legal question, rather than one of fact. See Pan American Petroleum Corp. v. El Paso Natural Gas Co., 77 N.M. 481, 424 P.2d 397 (1966).
To be exempt from property taxes, property need not be used exclusively for charitable or educational purposes, but those must be the primary or substantial uses. Temple Lodge No. 6 v. Tierney; NRA Special Contribution Fund v. Board of County Comm'rs, 92 N.M. 541, 591 P.2d 672 (Ct.App. 1978); Rutherford v. County Assessor for Bernalillo County, 89 N.M. 348, 552 P.2d 479 (Ct.App. 1976). This court has noted, further, that the "direct and immediate use" of the property is the relevant issue. NRA Special Contribution Fund v. Board of County Comm'rs. In addition, it is the actual use of the property, not the owner's declared objects and purposes, that determines the right to an exemption. See Santa Fe Lodge No. 460 v. Employment Sec. Comm'n; Albuquerque Lodge, No. 461 v. Tierney.
The exemption granted educational and charitable institutions proceeds upon the theory of the public good accomplished by *1167 them and the peculiar benefits derived by the public in general from their conduct. State v. Locke, 29 N.M. 148, 219 P. 790 (1923). Property which is exempt from taxation does not share in the burden of the cost of government; thus, in exchange for its exempt status, such property must confer a substitute substantial benefit on the public. NRA Special Contribution Fund v. Board of County Comm'rs.
Thus, under these cases, there must be evidence concerning the primary and substantial use of the property. See United Veterans Org. v. New Mexico Property Appraisal Dep't, 84 N.M. 114, 500 P.2d 199 (Ct.App. 1972). The purposes must be within the standards developed by case law. For example, "used for educational purposes" means the direct, primary, and substantial use of property that embraces systematic instruction in any and all branches of learning from which a substantial public benefit is derived. NRA Special Contribution Fund v. Board of County Comm'rs (quoting McKee v. Evans, 490 P.2d 1226, 1230 (Alaska 1971)). "Substantial public benefit" is "benefit of real worth and importance to any indefinite class of persons who are a part of the public, which benefit comes to these persons from the use of property." Id., 92 N.M. at 549, 591 P.2d at 680. Any purpose is "charitable" which is one of the types stated in the preamble to the English Statute of Charitable Uses, such as relief of the aged or maintenance of the sick. Santa Fe Lodge No. 460 v. Employment Sec. Comm'n.
The record on appeal supports a conclusion that each lodge operates differently. Their income, expenditures, and percentage of income given to charitable purposes are all different. While records from the various lodges were admitted into evidence, there were no findings concerning any individual lodge or any percentage of income used for charity. Under the relevant standard, separate decisions for each lodge are required. See Temple Lodge No. 6 v. Tierney.
The constitution has provided a charitable exemption for which our cases recognize the propriety of a case-by-case analysis. The statutory scheme provided by the legislature permits an orderly, expert, and consistent resolution of requests for an exemption on a case-by-case basis. The appellate review provided by the legislature ordinarily follows the completion of the process by assessment and allows the appellate court to review an administrative record. See § 7-38-28(A), (B), & (D).
Under these circumstances, we conclude that the legislature, in enacting a comprehensive scheme for administrative and judicial review, has provided the exclusive remedy for the claims presented to the district court, and that the administrative remedies provided by the legislature must be exhausted. See generally Annot., Justiciable Controversy Within Declaratory Judgment Act as Predicable Upon Advice, Opinion, or Ruling of Public Administrative Officer, 149 A.L.R. 349 (1944). To permit judicial review of the ruling by declaratory judgment would eliminate the administrative record or substitute and avoid the standard of review the legislature has provided.
Jurisdiction does not lie in the court until the statutorily required administrative procedures are complete. See Application of Angel Fire Corp., 96 N.M. 651, 634 P.2d 202 (1981). The Declaratory Judgment Act does not enlarge the jurisdiction of the district court. Allstate Ins. Co. v. Firemen's Ins. Co., 76 N.M. 430, 415 P.2d 553 (1966). The ruling was within the express statutory power of the department. It is consistent with the relevant provision of the state constitution and the cases interpreting that provision. There being no relevant exception, see National Account Sys., Inc. v. Anderson, 82 Ill. App.3d. 233, 37 Ill.Dec. 654, 402 N.E.2d 656 (1980), we hold that the trial court lacked jurisdiction to decide the tax-exempt status of any of the lodges.
CONCLUSION
On these facts, we conclude that an action for declaratory judgment prior to assessment and protest would bypass significant parts of the administrative process and otherwise circumvent the legislature's intent. We therefore remand to the district *1168 court with instructions to dismiss the petition for lack of jurisdiction. No costs are awarded.
IT IS SO ORDERED.
ALARID and APODACA, JJ., concur.
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830 F.Supp. 468 (1993)
Thomas J. TACKET, Plaintiff,
v.
GENERAL MOTORS CORPORATION, DELCO REMY DIVISION, Defendant.
No. IP 89-162 C.
United States District Court, S.D. Indiana, Indianapolis Division.
May 21, 1993.
*469 Frank B. Harshey, Merriman & Harshey, Indianapolis, IN, for plaintiff.
Herbert C. Snyder, Jr., Barnes & Thornburg, Fort Wayne, IN, for defendant.
ENTRY
BARKER, District Judge.
The last time this matter was before the Court, the plaintiff was allowed "twenty (20) days to amend his complaint to plead an independent tort of the kind for which Indiana law allows for the recovery of punitive damages." Tacket v. Delco Remy, Div. of General Motors Corp., 818 F.Supp. 1243, 1247 (S.D.Ind.1993). Tacket has since filed his Second Amended Complaint, and the defendant has moved to dismiss two of the three counts therein.
I. Background
The facts of this case, as reported in Tacket v. Delco Remy, Div. of General Motors Corp., 959 F.2d 650 (7th Cir.1992), are as follows:
Mr. Tacket was hired by General Motors on January 6, 1971, and was employed by Delco Remy (a division of General Motors) for approximately sixteen years. During his time at General Motors, Mr. Tacket rose to the level of senior project engineer. Mr. Tacket was employed pursuant to a written employment contract. Under the terms of the contract, Mr. Tacket's employment was extended "from month to month only on a calendar month basis." R. 7 Ex. A.
While still employed by General Motors, Mr. Tacket filed a defamation suit against his employers. On February 20, 1987, the district court granted General Motors' motion for a directed verdict in the defamation suit;[1] and on March 6, 1987, General Motors fired Mr. Tacket. In a letter dated March 9, 1987, General Motors stated to *470 Mr. Tacket that he had been discharged because Mr. Tacket's conduct had "caused him to lose the trust, confidence and respect of his superiors and peers. He had made claims against his management which they believe are groundless. In support of his claims, he made statements about his superiors and peers that management believes were untrue. These circumstances make continuation of his employment not in the best interest of him or the Corporation." R. 7 Ex. B. At the time of his discharge, Mr. Tacket was paid for five days of work in March and for twelve and one-half vacations days. Mr. Tacket's monthly salary at the time of his dismissal was $3,887.88.
Id. at 651.
In his Second Amended Complaint, Tacket alleges the following facts:
5. Tacket was an employee of General Motors for seventeen years.
6. Tacket's employment with General Motors was pursuant to a written contract, providing for employment on a calendar month basis.
7. In 1985, General Motors suspected Tacket of involvement with a situation that General Motors considered to be a conflict of interest. As a result, Tacket was suspended from employment by General Motors. Although General Motors returned Tacket from suspension, it never communicated to anyone that Tacket was cleared of wrongdoing.
8. In 1985, Tacket filed suit against General Motors to redress General Motors' defamation of Tacket's reputation.
9. In retaliation for pursuing the defamation lawsuit, General Motors subjected Tacket to a continuous pattern of intentional and outrageous conduct. This outrageous conduct included firing Tacket without just cause on March 6, 1987 in retaliation for pursuing the defamation lawsuit.
Based on these allegations, Tacket asserts three counts against General Motors. In Count I, Tacket alleges that the defendant is liable under a breach of employment contract theory. In Count II, Tacket claims that the defendant breached the employment contract "without just cause, [] wrongful[ly], and ... to cause emotional distress" and seeks compensatory emotional distress damages from the same breach of contract alleged in Count I. In Count III, Tacket alleges that the defendant's "conduct" was intentional, outrageous, and done with the intent to cause emotional distress, for which he requests not only compensatory damages, but also punitive damages "in an amount sufficient to punish the Defendant for its wrongful conduct, and to deter the Defendant General Motors Corporation and others similarly situated from such wrongful conduct in the future. ..."
The defendant moves to dismiss Counts II and III under Fed.R.Civ.P. 12(b)(6), on the grounds that Indiana law does not allow a plaintiff to be compensated for emotional distress damages that flow from a breach of contract. The defendant also argues that Tacket's Intentional Infliction of Emotional Distress claim, a tort, is unavailable as an outgrowth of a breach of contract and is barred by a two-year statute of limitations. In response to those arguments, Tacket claims that emotional damages are available from a breach of contract where the defendant has invaded a legal right which by its nature is likely to provoke an emotional disturbance. He also claims that based on the allegations set forth in ¶ 9 of the Second Amended Complaint, he has sufficiently set forth a tort claim for Intentional Infliction of Emotional Distress. Tacket asserts in his response brief:
[T]he instant case has evidence that the Defendant made threatening and harassing phone calls to the Plaintiff and others around him who were totally unconnected with his employment. The Defendant had his phone tapped, at his office and at his home, because it might provide some useful evidence that could be used to "get" the Plaintiff. The Defendant intended to retaliate against the Plaintiff by terminating him without cause. This evidence establishes, without any inferential chain, the intent on the part of the Defendant to cause emotional harm to the Plaintiff.
*471 Tacket does not address the defendant's claim that Count III is barred by the statute of limitations. The only reference Tacket makes to the timeliness of this action is that the ¶ 9 allegations "relate back to the filing of the original complaint under Federal Rule of Civil Procedure 15(c)."
II. Discussion
Count II: Emotional Distress Damages
This court has previously denied a defense motion for summary judgment on Tacket's emotional distress theory. As this court noted in its denial of summary judgment, an exception to Indiana's impact rule exists where (1) the defendant committed a tort involving the intentional invasion of a legal right which by its very nature is likely to provoke an emotional disturbance, such as a tortious trespass, Cullison v. Medley, 570 N.E.2d 27 (Ind.1991), (2) "the defendant by extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to the [plaintiff]", Comfax Corp. v. North American Van Lines, Inc., 587 N.E.2d 118 (Ind.Ct.App.1992), or (3) the conduct causing the injury was "inspired by fraud, malice, or like motives and the conduct was intentional." Shuamber v. Henderson, 579 N.E.2d 452 (Ind.1991).
The defendant now moves to dismiss Count II claiming that a plaintiff is not entitled to emotional distress damages, the impact rule notwithstanding, under a breach of contract claim even where the plaintiff alleges that the defendant breached an employment contract "without just cause, [] wrongful[ly], and ... to cause emotional distress."
In Indiana, a plaintiff may not recover mental anguish damages that flow from a negligent breach of contract. Plummer v. Hollis, 213 Ind. 43, 11 N.E.2d 140 (1937). This policy is sound:
The authorities cited upon the argument leave no doubt in my mind that the amount of damages to be awarded for the breach of contract cannot, consistently with legal principles governing the assessment of damages, be increased on account of mental distress. If mental distress is to be compensated, the amount of damages should correspond with the degree of suffering. The degree of suffering will depend rather more upon the temperament and physical condition of the injured party that upon the degree of culpability of the wrongdoer. To render fair compensation for the mental anguish of a person of refined ideas and sensitive organization, or to a person whose suffering may have been greatly augmented by nervous debility at the time, would subject the defendant to consequences quite as severe as the rule of vindictive damages applicable in cases of malicious torts, and he would have to pay for his adversary's infirmity, rather than for the natural or probable effect of his own wrongful act or neglect.
McBride v. Sunset Telephone Co., 96 F. 81 (C.C.D.Wash.W.D.1899).
This rule comports with the generally accepted rule stated in § 353 of the Restatement (Second) of Contracts:
Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a likely result.
Restatement (Second) of Contracts, § 353; see 11 Williston, Contracts § 1341 (3rd Ed. 1968). The single comment following § 353 is often cited by cases interpreting this restatement, and is particularly enlightening as applied to the facts of this case:
a. Emotional Disturbance Damages for emotional disturbance are not ordinarily allowed. Even if they are foreseeable, they are often particularly difficult to establish and to measure. There are, however, two exceptional situations where such damages are recoverable. In the first, the disturbance accompanies a bodily injury. In such cases the action may nearly always be regarded as one in tort.... In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages *472 concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance. Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, if the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance.
The comment makes clear that § 353 of the Restatements (Second) of Contracts focuses on the nature of the contract, not the type of breach, as to whether emotional damages are available. Gaglidari v. Denny's Restaurants, Inc., 117 Wash.2d 426, 815 P.2d 1362 (1991) (applying § 353 to a breach of employment contract and finding emotional damages unavailable). "Common examples of the second exceptional situation are contracts 1) between carriers and innkeepers and their passengers and guests; 2) for the carriage or proper disposition of dead bodies; and 3) for the delivery of messages concerning death." Orono Karate, Inc. v. Fred Villari Studio of Self Defense, Inc., 776 F.Supp. 47, 52 (D.N.H. 1991); see Nitzsche v. Stein, Inc., 797 F.Supp. 595, 600 (N.D.Ohio 1992) (emotional damages not available in a breach of employment contract court found that only twice emotional distress damages were held to be recoverable in any breach of contract setting, and "both cases involved marriage, and in both cases ordinary contract remedies [were] inadequate"); Thanh Vong Hoai v. Sun Refining & Marketing Co., 1991 WL 530756 at *5 1991 U.S.Dist. LEXIS 5977 at *14 (D.D.C. 1991) (applying § 353, court held that "a franchise contract is not a contract of a `kind' likely to cause serious emotional disturbance. Such include `contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death.'").
The breach of contractual agreements and the concomitant loss of profits and other business opportunities is a fact of life in a complex society such as ours where large numbers of financial transactions are consummated every day. While undesirable, the breach of commercial agreements, even where the financial loss is great, does not usually constitute the type of outrageous conduct envisioned by the Restatement and the case law.
Price v. Blyth Eastman Paine Webber, Inc., 576 F.Supp. 431, 435 (W.D.Pa.1983).
Indiana has not directly addressed the issue of the recoverability of emotional damages under an intentional breach of contract claim. Although Indiana has not expressly adopted or rejected § 353, Indiana frequently cites to other provisions of the Restatements (Second) of Contracts, see, for example, Willie's Constr. Co. v. Baker, 596 N.E.2d 958, 961 (Ind.Ct.App.1992) ("`Ordinarily, in a breach of contract case the injured party's damages are measured by the loss in value to him of the other's party's failure to perform.' Restatement (Second) of Contracts § 347(a)"), and a review of Indiana law indicates that if the Supreme Court of Indiana were faced with this issue, it would conclude that when an employer breaches an ordinary employment contract (such as the one at bar), even if the employer intended to cause the employee emotional harm in breaching that agreement, emotional distress damages are not recoverable under a breach of contract claim. See Miller Brewing Co. v. Best Beers of Bloomington, Inc., 608 N.E.2d 975 (Ind.1993); Comfax Corp. v. North American Van Lines, Inc., 587 N.E.2d at 127 (in considering a claim of negligent infliction of emotional distress, the court "could not say that an economic loss is sufficiently serious in nature and the resulting emotional trauma is of a kind and extent normally expected to occur in a reasonable person, warranting the imposition of liability"); Mehling v. Dubois County Farm Bureau Coop. Assn., 601 N.E.2d 5, 9 (Ind.Ct.App. 1992) (tort of Intentional Infliction of Emotional Distress is unavailable in a breach of an employment-at-will contract); Burleson v. Illinois Farmers Ins. Co., 725 F.Supp. 1489, 1495 (S.D.Ind.1989) ("in contract actions the defendant's motive or state of mind is of no moment except where punitive damages are sought") (citing Indiana law); see also Decatur Memorial Hospital v. Connecticut General Life Ins. Co., 990 F.2d 925, 928 (7th Cir.1993) ("Moorman [Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982) ] prevents the use *473 of tort measures of damages in what are really contract cases. See Rardin v. T & D Machine Handling, Inc., 890 F.2d 24, 27-29 (7th Cir.1989). Persons who have entered into consensual arrangements and specified their own duties and remedies need not fear that courts will use tort doctrine to pull the rug out from under them."); Marcella v. ARP Films, Inc., 778 F.2d 112, 119 (2nd Cir.1985) ("Emotional and mental distress is generally not compensable in a breach of contract action, see Boyce v. Greeley Square Hotel Co., 228 N.Y. 106, 111, 126 N.E. 647, 649 (1920), particularly in the absence of a physical injury."); V.S. Int'l, S.A. v. Boyden World Corp., 1993 WL 59399 at *11, 1993 U.S.Dist. LEXIS 2586 at *31-32 (S.D.N.Y. 1993) ("It is axiomatic under New York law that, in a breach of contract action, an individual generally cannot recover for emotional and mental distress, social humiliation, wounded feelings, serious anxiety, or public ridicule allegedly resulting from the breach."); Nitzsche v. Stein, 797 F.Supp. at 600 (emotional damages not recoverable from breach of employment contract); United States v. Long, 687 F.Supp. 343 (S.D.Ohio 1987) (same); Wise v. General Motors Corp., 588 F.Supp. 1207, 1211-12 (W.D.Va.1984) (concluding that Virginia would adopt the rule set forth in § 353, the district court found emotional damages under a breach of warranty claim unavailable: "[T]he generally accepted rule among the various jurisdictions which have address the issue is that damages for emotional distress are excluded, except where there is bodily impact or where emotional distress is likely to result").
In Miller Brewing Co. v. Best Beers of Bloomington, Inc., the Supreme Court of Indiana held that punitive damages are not available under a breach of contract claim, stating that where the conduct of the breaching party independently establishes the elements of a common law tort and where the proven tort is of the kind for which punitive damages are allowed, punitive damages may be awarded on the tort claim, but not on the breach of contract claim. Miller Brewing Co. v. Best Beers of Bloomington, Inc., 608 N.E.2d at 981 (citing Vernon Fire & Casualty v. Sharp, 264 Ind. 599, 349 N.E.2d 173, 180 (1976)). The Miller Brewing court stated that the reasons for not allowing punitive damages under a breach of contract claim are several. The Court held that punitive damages, "designed to punish the wrongdoer and to dissuade him and other from similar conduct in the future," are not compensatory and create an undesirable windfall for the non-breaching party. Further, not allowing punitive damages "furthers the public interest in recognizing the existence of bona fide business disputes and separating them from breaches of contract achieved in a tortious manner.... `The public interest cannot be served by any policy that deters resort to the courts for the determination of bona fide business disputes,' Travelers, 442 N.E.2d at 363, or prohibits one party to a contract from exercising his common law rights to breach a contract and pay a rightful amount of compensatory damages." Id. at 983-84 (citing Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349 (Ind.1982)).
Although the Court did not address the issue of emotional damages in Miller Brewing, it appears that the Supreme Court of Indiana would, for many of the same reasons stated therein, prohibit emotional damages in breach of contract claims. A rule prohibiting emotional damages under a breach of contract claim "furthers the public interest in recognizing the existence of bona fide business disputes and separating them from breaches of contract achieved in a tortious manner" and would encourage one party to a contract to "exercis[e] his common law rights to breach a contract and pay a rightful amount of compensatory damages." Id. As the Court stated in Miller Brewing, "unlike torts, where the duty is owed to all and a broad measure of damages is available, contract obligations are owed only to the parties to the contract and damages are limited to those reasonably within the expectations of the parties when the contract is made." Id.
To allow emotional damages under a breach of contract claim where the defendant allegedly breached a contract with the intent to cause emotional distress would be tantamount to recognizing the tort of tortious breach of contract, a cause of action which has been expressly rejected in Indiana. Comfax Corp. v. North American Van Lines, *474 Inc., 587 N.E.2d at 123-24. In Count II, the plaintiff attempts to establish a hybrid tort/contract claim by asserting breach of contract-type conduct with tort-type repercussions. However, as Indiana has demonstrated a "long-standing reluctance" to recognize the tort of Intentional Infliction of Emotional Distress, see Comfax, at 127-128, as well as an unwillingness to mesh tort remedies with contract claims, see Miller Brewing Co. v. Best Beers of Bloomington, Inc., supra, this court declines to expand Indiana law to accept either the new tort of tortious breach of contract, the tort of Intentional Infliction of Emotional Distress in the contract setting, or the new and additional remedy of emotional damages under the type of intentional breach of employment contract claim asserted herein.
Tacket claims in his Second Amended Complaint, "The wrongful termination of an employment contract naturally and logically causes emotional distress to the wronged party." However, this court finds that emotional damages are generally not recoverable under a breach of contract claim, and an employment contract of the type alleged herein is not the type of contract which, when breached, would likely cause a serious emotional disturbance of the kind for which there is an exception to the general rule. Count II, a request for emotional damages from a breach of employment contract, does not state a claim upon which relief can be granted, and Count II must therefore be dismissed.
Count III: Intentional Infliction of Emotional Distress
The court lastly addresses the issue of whether Tacket's claim for Intentional Infliction of Emotional Distress is based on conduct that occurred prior to February 17, 1987, that is, more than two years after Tacket filed this action. At this juncture, the court cannot say for sure: Tacket did not respond to the defendant's statute of limitations assertion in its Response To Defendant's Motion to Dismiss, perhaps because the defendant had allocated only one sentence (and no citations) at the end of its 14 page brief to address this issue. The defendant has, however, briefed this issue in its Reply to Tacket's Response, in which it lays out the statute of limitations argument and citing to evidence outside the complaint, alleges that Tacket's claims for Intentional Infliction of Emotional Distress is not based on conduct occurring within the relevant time frame. See Comfax Corp. v. North American Van Lines, Inc., 587 N.E.2d at 127 ("To recover under such a claim, a plaintiff must show that the defendant by extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to the [plaintiff].")
Tacket's tort claim may or may not be barred by the applicable statute of limitations. This issue, however, has not been sufficiently briefed. Further, because the defendant relied on evidence outside the complaint, the court converts that part of the defendant's motion to dismiss dealing with Count III into one for summary judgment, and Tacket is hereby ordered to respond to the arguments set forth in the defendant's Reply brief and demonstrate to the court why Indiana's two-year statute of limitations for Intentional Infliction of Emotional Distress does not bar Count III. Tacket is ordered to respond to this order within twenty (20) days of the date of this entry; a failure to do so will be deemed as an admission that Count III is barred under the applicable statute of limitations, and the Court will so rule.
III. Conclusion
Accordingly, the motion to dismiss, as it pertains to Count II, is GRANTED. The remainder of that motion to dismiss is taken under advisement pending a response from Tacket regarding the statute of limitations issue.
It is so ORDERED.
NOTES
[1] The directed verdict in the companion case was overturned by the Seventh Circuit, a trial was had on Tacket's claims, and Tacket, prevailing at trial, was awarded of $100,000 in damages against General Motors. That award was later reversed on appeal on the grounds that Tacket had failed to demonstrate evidence of a pecuniary injury. See Tacket v. Delco Remy, Div. of Gen. Motors Corp., 937 F.2d 1201, 1207 (7th Cir.1991).
|
340 F.Supp.2d 728 (2003)
Deric HEARN, et al Plaintiffs
v.
CITY OF JACKSON Defendant
No. CIV.A.3:99CV359LN.
United States District Court, S.D. Mississippi, Jackson Division.
August 7, 2003.
*730 Edward P. Lobrano, Jr., Lobrano, Butler & Kirk, Ridgeland, MS, for Plaintiffs.
Terrell S. Williamson, Phelps Dunbar, Michael Jeffrey Wolf, Page, Kruger & Holland, P.A., Jackson, MS, for Defendant.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
Plaintiffs, forty-two black police officers employed by the City of Jackson Police Department, brought this action against the City under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983 complaining that the procedure used by the City in *731 May 1998 for the selection of individuals for the rank of sergeant in the police department discriminated against black applicants. Plaintiffs assert a disparate impact claim, alleging, in particular, that the written test which was used to qualify applicants to proceed to the second and third rounds of the selection process (simulation exercises and structured interview, respectively), adversely impacted black officers, whose pass rate was significantly below that of the white applicants, and they further charge the City with intentional discrimination in the use of the test results, i.e., disparate treatment, reasoning that an inference of intentional race discrimination arises from the City's use of the test results for its promotion decisions in the face of knowledge of its discriminatory impact on black applicants. The case was tried to the court, and the court, having considered the evidence and arguments presented by the parties, finds and concludes that plaintiffs have failed to establish their claims and that their complaint is therefore due to be dismissed.
In the spring of 1998, the City conducted a three-part test for the purpose of promoting qualified candidates to the rank of sergeant in the Jackson Police Department. The first stage, a written test, was administered in May 1998 to 147 applicants. A total of 147 persons sat for the test, 106 blacks (72%) and 46 whites (28%). Forty-seven of those tested received a passing score, of whom 26 were white and 21 were black. Those 47 candidates progressed to the second stage, which consisted of simulation exercises and, finally, to the third stage, which consisted of a structured interview. Upon completion of all three parts of the test, the test and its results were submitted for approval to the United States Department of Justice pursuant to consent decrees the City had previously entered in 1974 and 1991.[1] By letter dated December 17, 1998, and faxed to the City on that same date, the Justice Department purported to approve the test and its results, but requested that the City "reconsider the procedure for determining the pass point on the police sergeant written examination [since] [t]he City's 1998 police sergeant written examination had an adverse impact on African-American candidates." [2] The promotional list was posted *732 the following day and promotion exercises were held in January 1999, at which time fifteen persons, including eight whites and seven blacks, were promoted to sergeant.
On May 22, 1998, shortly after the test as administered, the plaintiffs herein filed an EEOC charge alleging disparate impact. On February 17, 1999, not long after the promotion were made, the EEOC issued its notice of right-to-sue letter, and on May 21, 1999, within ninety days of receipt of their right-to-sue notice, plaintiffs filed this lawsuit which first included only their disparate impact claim, but was subsequently amended to include their claim that the City engaged in intentional discrimination by using a test that was known to have a disparate impact on black applicants for the position of sergeant.
DISPARATE IMPACT:
The disparate impact theory is used to challenge a facially neutral employment policy that falls more harshly on a protected class of employees and cannot be justified on business necessity. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 409 (5th Cir.1998). In a disparate impact case, the plaintiff must demonstrate that the "respondent uses a particular employment practice that causes a disparate impact on the basis of race ... and the respondent [must fail] to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). Thus, the plaintiff bears the initial burden of establishing a prima facie case by showing that the promotion method in question had an disparate impact on minorities, and if he sustains that burden, the burden then shifts to the employer to show that the method of selection is valid by establishing that it is "job related" and "consistent with business necessity." Id.; see also Frazier v. Garrison I.S.D., 980 F.2d 1514, 1525 (5th Cir.1993). If the employer carries its burden by successfully validating the selection method, the burden shifts back to the plaintiff to prove that there was another available method of evaluation which was equally valid and less discriminatory that the employer refused to use. 42 U.S.C. § 2000e-2(k)(1)(A)(ii); see also Frazier, 980 F.2d at 1525.
In this case, based on the statistical disparity between the passing rates of blacks arid whites, the City has stipulated that the May 1998 written sergeant's exam had an adverse impact on black applicants. Thus, the City must show that the test is job related for the position in question and consistent with business necessity. Plaintiffs contend that the City has failed to sustain its burden of showing that the examination was job related, but further claim that even if the City has shown the test was valid through an appropriate validation study, plaintiffs have shown that there were equally valid, less discriminatory alternative selection methods which the City refused to use.
At this, what has been termed "the justification stage" of a disparate-impact case, "the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer." Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 659, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733 (1989). "The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice," id., which requires proof that the challenged practice was job related, in the sense that *733 it measures traits that are significantly related to the applicant's ability to perform the job." Gillespie v. State of Wisconsin, 771 F.2d 1035, 1040 (7th Cir.1985) (citing Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)); see Griggs, 401 U.S. at 436, 91 S.Ct. 849, 28 L.Ed.2d 158 ("[A]ny given requirement must have a manifest relationship to the employment in question"); Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280, 304 (1975) (quoting the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4(c) (1974)) ("The message of these Guidelines is the same as that of the Griggs casethat discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be `predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job'").
A test or other selection method may be "validated," or shown to be sufficiently jobrelated to comply with the requirements of Title VII,[3] under any one of three validation methods: criterion related, content validity or construct validity. See Uniform Guidelines on Employee Selections Procedures, 29 C.F.R. § 1607.5(B). These methods have been concisely described as follows:
A criterion-related validation study determines whether the test is adequately correlated with the applicant's future job performance. Criterion-related tests are constructed to measure certain traits or characteristics thought to be relevant to future job performance. An example of an employment test that would be validated by the criterion-related validation method is an intelligence test. The content validation strategy is utilized when a test purports to measure existing job skills, knowledge or behaviors. "The purpose of content validity is to show that the test measures the job or adequately reflects the skills or knowledge required by the job." For example, a typing test given to prospective typists would be validated by the content validation method. Construct validity is used to determine the extent to which a test may be said to measure a theoretical construct or trait. For example, if a psychologist gave vocabulary, analogies, opposites and sentence completion tests to a group of subjects and found that the tests have a high correlation with one another, he might infer the presence of a constructa verbal comprehension factor.
Gillespie, 771 F.2d at 1040 n. 3 (citations omitted). See also Ensley Branch of the N.A.A.C.P. v. Seibels, 616 F.2d 812, 816 n. 11 (5th Cir.1980) (explaining that "criterion" validity is demonstrated "by identifying criteria that indicate successful job performance and then correlating test scores and the criteria so identified"; "construct" validity is "demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance"; and "content" validity is demonstrated by tests whose content closely approximate tasks to be performed on the job by the applicant") (quoting Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 n. 13 (1976)). The EEOC's Uniform Guidelines provide that a selection procedure may be used "if it represents a critical work behavior (i.e., a behavior which is necessary for performance of the job) or work behaviors which *734 constitute most of the important parts of the job." 29 C.F.R. § 1607.14(C)(8). The Guidelines further state that "[a]ny validity study should be based upon a review of information about the job for which the selection procedure is to be used." 29 C.F.R. § 1607.14(A).
In the case at bar, the City has sought to establish the validity of the 1998 sergeant's examination by showing that the test was content valid. "A test will have content validity if there is a direct relationship between the test contents and the job contents." Williams v. Ford Motor Co., 187 F.3d 533, 540 (6th Cir.1999) (citing Police Officers for Equal Rights v. City of Columbus, 644 F.Supp. 393, 414 (S.D.Ohio 1985)). See also Uniform Guidelines, 29 C.F.R. § 1607.5 ("Evidence of the validity of a test or other selection procedure by a content validity study should consist of data showing that the content of the selection procedure is representative of important aspects of performance on the job for which the candidates are to be evaluated."); 29 C.F.R. § 1607.14(C)(1) ("A selection procedure can be supported by a content validity strategy to the extent that it is a representative sample of the content of the job").[4] A content validity study should measure knowledge, skills, or abilities that are "necessary prerequisite[s]" for the "performance of critical or important work behavior(s)" for the job. Uniform Guidelines 29 C.F.R. § 1607.14(C)(4). Thus, in order to construct a content valid examination under the Uniform Guidelines, a detailed job analysis must be performed for the job in question that focuses on the work behaviors necessary for successful performance of the job and also on the tasks associated with those behaviors. Id. § 1607.14(C)(2).
In this case, the record establishes that when first hired by the City in 1993 to develop a promotional process for the rank of sergeant in the police department, Semko and Associates (Semko), an employment testing firm, conducted a job analysis of the sergeant position for the City. Semko, whose team consisted of Dr. Elizabeth Semko, Dr. John Wade and William Cooley, investigated the job systematically to identify the tasks, duties and responsibilities that comprise the position and to ascertain the knowledge, skills and abilities (KSAs) that one would need in order to perform those tasks satisfactorily. In that job analysis, Semko initially interviewed the vast majority of persons then occupying the rank of sergeant, as well as a number of lieutenants (to whom sergeants report in the chain of command), and based on those interviews, the Semko team developed lists of tasks and KSAs. Those lists were then provided to a panel of "subject matter experts"the panel being comprised of the seven sergeants who had not been interviewed initiallyso that the tasks could be rated on the frequency that a sergeant would perform each task and the tasks and KSAs could be rated as to their relative importance to the job of sergeant. *735 The tasks were then linked to KSAs, which were divided or grouped into twelve job "dimensions" which were defined by the KSAs that fell under it, and the dimensions themselves were weighted, or rated, according to their relative importance to the job by evaluating the number and relative importance of the KSAs comprising the dimension. This job analysis, which was first prepared and used by Semko to develop a sergeant's promotional procedure in 1994, was used again in connection with Semko's development of promotional procedures in 1996 and the 1998 procedure that is at issue, after Semko determined, upon an updated evaluation, that the job analysis still accurately represented the position since the job had not changed task-wise or KSA-wise from 1993 to 1998.
In 1998, as in the two previous promotional procedures, Semko developed a three-part selection process, consisting, first, of a written screening test to qualify a limited number of candidates who could go on to the next two stages of the promotion procedure, which were an assessment center and a panel interview. As reflected in Semko's proposal to the City, and as confirmed at trial by both Semko witnesses and City officials, the determination was made "to utilize the written test as a screening device, as well as incorporating it in the final scores that determined the promotion list" based largely on cost considerations, since the assessment center and panel interview were lengthy procedures requiring considerable work and expense and City officials did not consider it financially feasible for all candidates to go through the full three-step process. However, in conjunction with these cost considerations, Semko also determined that the written test would best evaluate two of the twelve dimensions identified in the job analysis, technical knowledge and legal knowledge, both of which were considered relatively important job dimensions. Semko thus set about the task of developing a suitable written test that would cover knowledge of laws, regulations, policies and procedures that sergeants in the Jackson Police Department should know. In addition to reliance on the job analysis, the Semko team identified and reviewed source materials that a sergeant must know to do the job, which included the Jackson Police Department General Orders, portions of the Mississippi Code and City ordinances and Civil Service Orders and Regulations for the City. Then, members of the team, working individually and together, devised a total of 99 test questions, which were written to sample the job knowledge in the source materials and materials identified in the job analysis as important for a sergeant to know. Semko relied on the job analysis information to determine the number of questions to be included from the various sources, and designed the test items to measure those KSAs that were determined by the job analysis as important to the successful performance of the sergeant's job.
The test items written by the Semko team were presented to a panel of three subject matter expertstwo black and one white sergeantwhich rated each test item on relevance and discussed the quality of the test items. Based on the panel's comments, eight items were excluded. Four of the questions had relevancy ratings that were not sufficiently high to warrant inclusion on the test; as to two more questions, the subject matter experts reported that common practice differed from the General Orders so that the questions could be confusing; and the subject matter experts were of the opinion that on two questions, none of the answers was entirely accurate. And based on input from the subject matter experts, on another four of the test questions, credit was given for two *736 answers, either one of which might be thought correct.
Candidates were given three hours to complete the written job test, though Dr. Semko estimated that only 90 minutes would be needed. Initially, the Jackson Civil Service Commission, which was in charge of approving the promotional procedure, determined that the cut-off score, i.e., the score applicants would have to attain to move on to the other phases of the process, would be 80, but after hearing objections and with the advice of Semko, determined that the pass score would be 80, unless fewer than forty-five candidates scored 80 or above, since a determination was made that there should be three times the number of initial openings (15) on the promotion list. The Commission determined that in the event fewer than fortyfive candidates scored 80 or higher, the cut-off score would be lowered to 70, but in no event would a candidate who scored below 70 advance to the assessment center and panel interview.[5] As it turned out, each of the forty-seven candidates who scored 70 or higher on the written test moved on to the assessment center and panel interview.[6]
Plaintiffs' Challenge
In connection with their disparate impact claim, plaintiffs submit that the City has not demonstrated the validity of the test, and challenge all facets of the development and utilization of the written test in question, including the job analysis, the test questions, establishment of the cut-score and the scoring of the test. As an initial matter, plaintiffs argue that the record is devoid of any data that relates written test scores to actual job performance, and insist, in fact, that there is no evidence to indicate that the City sought to measure the job performance of candidates who were promoted to sergeant such that some correlation between the test and job performance could be made. Plaintiffs insinuate, in other words, that the test was not properly validated inasmuch as Semko used content validity as the sole method of validation of the test at issue, when, according to plaintiffs, Semko should have used criterion-validity or a combination of content- and criterion-validity in an effort to correlate performance on the test to actual job performance. The court rejects this position.
"Neither the case law nor the Uniform Guidelines purports to require that an employer must demonstrate validity using more than one method." Williams v. Ford Motor Co., 187 F.3d at 544^5 (citing 29 C.F.R. § 1607.5(A) ("For the purposes of satisfying these guidelines, users may rely upon criterion-related validity studies, content validity studies or construct validity studies"), and § 1607.14(C)(1)) ("Users choosing to validate a selection procedure by a content validity strategy should determine whether it is appropriate to conduct such a study in the particular employment context."); see also Washington v. Davis, 426 U.S. 229, 248 n. 13, 96 S.Ct. 2040, 2051 n. 13, 48 L.Ed.2d 597 (1976) (stating that "[i]t appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance," and that any of the three recognized basic methods of validation may be used). Plaintiffs do not dispute that content-validation can be an appropriate tool, but insist that here, *737 something more or different was needed. On this point, the court recognizes that the nature of the inquiry at issue may tend to recommend the use of one type validation study over another, and that there are circumstances in which criterion-related validation might be preferable to contentvalidation.[7] However, plaintiffs have not persuaded the court that content validation was not an appropriate or sufficient tool to for use in this specific situation. Drs. Semko, Wade and Landy, whose testimony the court found consistent and credible,[8] testified that content validation alone was adequate and proper, and that while criterion-related validation might also have been useful, it was neither required nor, in fact, reasonably available as a validation tool under the particular circumstances. In this vein, Dr. Semko cogently explained that although the plan from the outset had been to do a content validity study, Semko was interested in a criterion-related study, as well, to determine whether test performance was a valid predictor of job performance based on an analysis of the job performance of earlier Semko test takers who had been promoted to sergeant and performed in the job for a period of time. It was determined, though, that there was no reliable, objective and valid performance criterion that would have supported such a study since although the City had in place a performance evaluation system of sorts, that system was thought to be too subjective to provide a valid measure of job performance. Dr. Semko made clear in her testimony that had there been a reliable, objective measure of job performance, she and her associates would have looked at the relationship between the predictor (the test) and that measure of job performance; but because that was no such measure and criterion validation was thus not a viable option, Semko determined to use a content validity study exclusively. The law, in the court's opinion, required no more.[9]
*738 Plaintiffs submit that the City has not established the test's validity in any event. With respect to the job analysis conducted by Semko plaintiffs object (1) that it was not developed contemporaneously with the 1998 promotional process but rather was prepared several years earlier; (2) that an insufficient number of subject matter experts were consulted in its preparation; (3) that the rating system used by the subject matter experts was not sufficiently defined; and (4) that Semko made no timely effort to link KSA's and tasks. As to the test itself, plaintiffs object that the relevance and accuracy of test questions and answers was not determined before the test was administered, and complain, as well, of what they contend was poor "readability" of numerous test items, all of which resulted in the inclusion of test items which should have been reworked or excluded altogether. Plaintiffs further complain that the test was not evaluated after-the-fact for internal consistency, i.e., positive item correlation, and that consequently, no effort was made after-the-fact to adjust the scoring, or to revise the cutscore. The court considers these contentions in turn.
In the court's opinion, plaintiffs' various objections to the job analysis are not well founded. The fact that Semko relied on a job analysis that had been developed several years earlier does not detract from the propriety of Semko's reliance on that job analysis in devising the 1998 promotion procedure. As is apparent not only from the testimony of witnesses in this case, including most notably Drs. Semko and Landy, but from numerous cases, there is no requirement in the industry or in the law that a new job analysis be prepared for each successive selection procedure, and an earlier-developed job analysis may appropriately be used so long as it is established that the job analysis remains relevant and accurate.[10]See, e.g., Rudder v. District of Columbia, 890 F.Supp. 23, 42 (D.D.C.1995) (fact that job analysis was begun four years earlier and may have borrowed from an even earlier job analysis did not discredit its validity where proof *739 was presented that officials were interviewed to make sure that the job analysis was still relevant and a determination was made that the jobs had not changed in any way related to the testing procedure). The evidence here demonstrates that before proceeding in reliance on the 1993 job analysis, Semko confirmed that it remained valid for the 1998 promotion process by presenting it for review by the police chief and existing sergeants.
Further, although plaintiffs object that the number of subject matter experts used in the development of the job analysis was inadequate, the court concludes otherwise. In fact, the evidence shows that in conducting the job analysis initially, Semko drew upon the knowledge and experience of all the sergeants, as well as some lieutenants, in the Jackson Police Department; and although the actual panel of subject matter experts was more limited, consisting of seven sergeants, that number was clearly sufficient for Semko's purposes.
In a related vein, the court finds no merit in plaintiffs' implicit challenge to Semko's efforts to update the job analysis, which simply required confirmation by a few knowledgeable people in the department that the job analysis remained accurate, which was done; nor, in the court's view, is there merit to plaintiffs' objection that the the rating system used by the subject matter experts was not sufficiently defined, for in the court's opinion, it was.
Plaintiffs charge, additionally, that the job analysis was flawed because Semko made no effort to link tasks and KSA's, or to demonstrate the linkages, prior to preparation of the test questions. The court, however, finds from the evidence that this was done at or before the time the test was constructed and thus rejects plaintiffs' position on this point. In summary, then, based on the evidence adduced at trial, the court concludes that the job analysis conformed to the standards of industrial psychology, as well as the EEOC Guidelines.
As with the job analysis, plaintiffs' objections to the test and test procedure are many, though the court concludes, as it has with respect to the job analysis, that they are not well taken. Among other things, plaintiffs fault Semko, and hence the City, for administering the test prior to validating the test through analysis and evaluation by the subject matter experts, and further, for failing to evaluate the test after-the-fact for reliability and to make necessary adjustments. As to the former contention, Dr. Semko agreed in her testimony that, although there is nothing in the law or in the applicable Guidelines that mandates it, tests are ordinarily evaluated by subject matter experts in advance of being administered to applicants so that potential problems can be identified and rectified before the test is given to the applicants. She acknowledged that this was not done here, and that instead, the test was submitted to the three subject matter experts for their evaluation and comments at the same time it was administered to applicants. She reasonably and credibly explained, though, that a determination was made to present the test to the subject matter expert s contemporaneously with administration of the test to applicants based on the desire expressed by some applicants in the orientation session that the content of the test not be disclosed to anyone in the department prior to administration of the exam.
Dr. Semko also described the manner in which the problems identified by the subject matter experts were addressed, by excluding test items that were deemed unacceptable for one reason or another resulting in a 91-item rather than the original 99-item testand giving credit for more than one answer where appropriate. Plaintiffs submit that while these steps *740 were certainly necessary under the circumstances in light of Semko's decision to proceed with the test without a prior assessment of the test's adequacy by the subject matter experts, additional steps should have been taken by Semko to validate the test, including, inter alia, assessment of the test results for reliability, or internal consistency.[11] On this issue, plaintiffs expert, Dr. Wayne Burroughs, opined that the test is not valid because there are too many negative correlations between questions. Specifically, Dr. Burroughs testified that whereas an acceptable reliability coefficient for the exam would have been .95, he determined that the reliability coefficient for this exam was.79. He maintained, therefore, that as many as nineteen questions should have been eliminated or the cut score should have been lowered to account for this.[12] Dr. Landy explained, however, that while a high reliability coefficient, or correlation coefficient, in the range of .9 or above, would be expected where an examination is intended to measure a skill or ability that is homogenous, such as arithmetic, a lower value would be expected when measuring something that is heterogenous, such as in the case of a knowledge exam that draws material for test items from multiple sources. According to Dr. Landy, in the latter case, which is the category into which the exam at issue would fall, a reliability coefficient of .79 is a common and acceptable value.[13] The court credits Dr. *741 Landy's testimony in this regard.[14] Additionally, Dr. Landy testified that upon analy sis, he determined that upon eliminating the questions identified by Dr. Burroughs, the reliability coefficient of the test actually dropped from .79 to .74, the percentage of blacks passing dropped from 22% to 16% and the adverse impact actually increased marginally. His testimony in this regard was not rebutted or otherwise challenged by plaintiffs.[15]
On another point, Dr. Burroughs asserted in his report and trial testimony that the test functioned poorly as a measure of job knowledge based on the poor readability of numerous test items. Although not entirely specific in his objection on this ground, Dr. Burroughs testified generally that he believed the reading level of the test exceeded the reading level required for the sergeant's job by several grade levels making the test more a test of applicants' reading ability and comprehension than a test of job knowledge. However, the court credits Dr. Landy's opinion that readability was not an issue in the performance of black and white candidates. According to Dr. Landy, in looking at the readability of what might appear on a computer-based analysis to have been less readable test items, there were not any differences in the pass rates between blacks and whites. Dr. Landy further opined that the reading level of the test was equal to or lower thanin fact, much lower thanthe reading level required by the job. In this regard, Dr. Landy opined that the reading level required by the job of sergeantnot just of police officer, but of sergeantwas 13th to 14th grade, not 9th to 10th grade as testified to by Dr. Burroughs, and that the reading level of the test was "much lower" than the 11th to 12 grade level testified to by Dr. Burroughs.[16]
Based on all of the foregoing, the court concludes that the City has sustained its burden to establish the validity of the test. That is, the 1998 test was content valid and sufficiently reliable. As explained supra, once an employer establishes job relatedness, as the City has done, the burden shifts to the plaintiffs to demonstrate that an equally valid selection procedure with less adverse impact exists that the employer refused to use. In this vein, plaintiffs submit that alternatives were available to the City which would have had less adverse impact, including (1) using the panel interview, rather than the written test, as the screening device, since the literature suggests that blacks perform better in interviews than on written exams; [17] or (2) allowing all applicants to complete all three phases of the process, as was done by the City of Jackson in its *742 2002 promotion procedure for the sergeant position.
As to the use of the panel interview as the screening device, all the witnesses who testified at trial, including Dr. Burroughs, agreed that the most effective (and costefficient) way to measure technical and legal knowledge, both of which are essential to effective performance of the job in question, is an objective, standardized written test. In her testimony, Dr. Semko explained that other dimensions, like communication skills and interpersonal skills, which can be measured and evaluated in the interview setting, are important after the foundation skills of technical and legal knowledge, since "[i]t doesn't matter how good a communicator someone is or how good their interpersonal skills are in the job of sergeant if they don't have an adequate level of technical and legal knowledge." Viewed from this perspective, if a screening device was to be used, then it should logically have been the written test,[18] since in the court's opinion, weaknesses in technical and legal knowledge are legitimate dimensions on which to screen out candidates.
Plaintiffs have suggested, though, as an alternative with less discriminatory impact, that the City could have allowed all the applicants to go through the entire selection procedure, which is precisely what the City did in 2002. The testimony was clear, however, that coupled with the City's determination that technical and legal knowledge were essential for the position was the fact of budgetary constraints facing the City, which gave rise to a need to conduct the promotion selection process as efficiently and economically as could reasonably be done. All the witnesses agreed that it would have required much more time and more money for all 150 candidates to have gone through all three phases of the process, with the assessment center and panel interviews requiring the most time and money. They agreed, additionally, that to allow all candidates to go through the process could have contributed to a feeling among candidates that the process was not fair and unbiased. For example, for all applicants to have gone through the panel interview, multiple panels would have been required, which could have contributed to a feeling among candidates that a disparity in interviewers' scoring adversely affected them. And to have allowed all candidates to have proceeded through the assessment centers would have necessitated a lengthy process with the resultant risk that those who went through the centers later might be privy to information not available to those who went through the press earlier.[19]
Given the considerations identified the court concludes that plaintiffs have not shown that there existed equally valid selection procedures that the City refused to follow, and the court thus concludes that plaintiffs have failed to sustain their burden to prove disparate impact.
*743 DISPARATE TREATMENT
In addition to their disparate impact claim, plaintiffs have alleged that the City engaged in intentional race discrimination, or disparate treatment, by proceeding to use the results of a test which it knew had a discriminatory impact and rely, in support of their contention in this regard, on the fact that the City used the test results, without making any adjustment to the results or cut-score, after the Justice Department had specifically informed the City that the test had a disparate impact. In the court's opinion, however, City officials involved in the decision to so proceed, all of whom, as it happens, were black, testified credibly that they had no intent to discriminate. All of the City's witnesses explained that while they were aware of the Justice Department's comments regarding the test and test results, they believed those comments related to any future exams they might use and interpreted the Justice Department's letter as expressly approving their use of the test results for this particular round of promotions. Their interpretation in this regard was reasonable, in the court's opinion, given the language of the Justice Department's letter, and in the absence of further proof to suggest a basis for inferring an intent on the part of City officials to discriminate, the court concludes that plaintiffs' disparate treatment claim is without merit and should be dismissed.
Conclusion
Based on the foregoing, it is ordered that plaintiffs' complaint be dismissed.
A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.
NOTES
[1] In March 1974, the City entered into a consent decree requiring that the City's use of any employment testing and its consideration of education standards in promotion decisions be supported by (a) a validation study showing that the tests proposed to be used accurately predict job performance, and that the education standards relate to the ability of applicants to do the job; or (b) a showing that the test has no adverse impact on blacks. According to the terms of the consent decree, a test will be considered to meet these standards when it has been approved, in writing, by the Justice Department as so doing, or when the court has so ruled.
On August 21, 1991, the City entered into a supplemental consent decree by which it agreed to formulate non-discriminatory hiring and promotion procedures to be approved by the Justice Department. This decree also provided for creation of the position of a citywide Equal Employment Opportunity Officer, whose job it would be to ensure compliance with the consent decrees and Title VII, and to coordinate the City's efforts to develop lawful selection procedures.
[2] The letter recited,
The United States does not object to the City making promotions to police sergeant and police lieutenant based on the City's 1998 promotional procedures.
The letter continued:
Although the United States does not object to the City's sergeant promotional procedure, we would like the City to reconsider the procedure for determining the pass point on the police sergeant written examination... The pass rates for whites and African-Americans were 23.3%, 21 out of 94, and 56.5%, 26 out of 47, respectively. The mean scores for white and African-American candidates was 70.8% and 63.3%, respectively. Only 33.6% of all of the sergeant candidates passed the written examination. The passing rate seems unusually low. We would request that the City collect additional data as to what may be an appropriate passing score on the written examination We also suggest that the City collect performance data on police sergeants and lieutenants.
[3] See Ensley Branch of the M.A.A.C.P. v. Seibels, 616 F.2d 812, 816 n. 11 (5th Cir. 1980) (defining "validation").
[4] Section 1607.14(C)(4) of the EEOC Guidelines provides:
[T]o be content valid, a selection procedure measuring a skill or ability should either closely approximate an observable work behavior, or its product should closely approximate an observable work product. If a test purports to sample a work behavior or to provide a sample of a work product, the manner and setting of the selection procedure and its level and complexity should closely approximate the work situation. The closer the content and the context of the selection procedure are to work samples or work behaviors, the stronger is the basis for showing content validity. As the content of the selection procedure less resembles a work behavior, or the setting and manner of the administration of the selection procedure less resemble the work situation, or the result less resembles the work product, the less likely the selection procedure is to be content valid, and the greater the need for other evidence of validity.
[5] As Dr. Wade testified, "[T]he reason we had a minimum score at all was they (the Civil Service Commission) said that if the sergeants can't get 70 percent of the questions like this right, they shouldn't ... be sergeants."
[6] Interestingly, one of the plaintiffs herein, Deric Hearn, argued to the Civil Service Commission that it should allow candidates with 70 or higher to move on through the process, which is exactly what happened.
[7] For example, the Uniform Guidelines suggest that content validity is not a proper vehicle to test for skills that can readily be learned on the job. Uniform Guidelines 29 C.F.R. § 1607.5(F), entitled, "Caution against selection on basis of knowledges, skills, or abilities learned in brief orientation period," states:
Caution against selection on basis of knowledges, skills, or ability learned in brief orientation period. In general, users should avoid making employment decisions on the basis of measures of knowledges, skills, or abilities which are normally learned in a brief orientation period, and which have an adverse impact.
Similarly, § 1607.14(C)(1), which sets forth standards for content validity studies, provides, in relevant part:
Content validity is also not an appropriate strategy when the selection procedure involves knowledges, skills, or abilities which an employee will be expected to learn on the job.
Here, plaintiffs argue, among other things, that content validation was not appropriate since the written test was designed to evaluate applicants' knowledge of materials to which ready reference could have been made on the job, such as the General Orders. However, while it is true that police sergeants need not rely solely on memory to do their job, and have at their disposal materials to find answers to questions to which they may not know the answer, it is undeniable that there is a basic fund of knowledge that persons occupying the position of sergeant should know, without the need to refer to source materials, and it does appear from the evidence that the test was designed to gauge applicants' knowledge of these more important matters. The test was not designed to evaluate matters that could readily be learned on the job, but rather to evaluate the officers' knowledge of matters that they ought to readily know in order to be effective in the position of sergeant.
[8] The court notes that plaintiffs have moved to disallow Dr. Landy's testimony. The court finds this request is not well taken, and rejects it.
[9] As stated, the purpose of a content validity study is to demonstrate that the content of an exam matches, or correlates to the content of the job to be performed and in that way is a measure of job performance. Content validation of a test used as a screening tool should demonstrate that the minimum passing score correlates to the minimum amount of knowledge necessary to effective performance of the job. Thus, it is clear that content validity is an appropriate tool for validation of a test used solely as a measure of minimal competence to perform the job. However, the cases indicate that where a test is used not to determine minimum competence to perform the job, but for ranking purposes, unrelated to minimum competence, there must be proof that a higher test score correlates to better job performance. See, e.g., Ensley Branch of N.A.A.C.P. v. Seibels, 616 F.2d 812, 822 (5th Cir. 1980) ("Use of a test for such ranking purposes, rather than as a ... device to screen out candidates without minimum skills, is justified only if there is evidence showing that those with a higher test score do better on the job than those with a lower test score."). Thus, in such cases, to be sufficient, the validation studies must show that higher test scores predict better job performance. In the court's opinion, the absence of such evidence in this case does not render the City's content validation study inadequate, for the test here was used as a screening device, i.e., to identify those thought to possess the minimum level of technical and legal knowledge required for the job, and not merely to rank applicants for selection for promotion.
[10] Dr. Landy testified that a new job analysis is needed only if one of two things is present, namely, if the department has changed structurally, so that positions have been added or eliminated in a way to change the duties and responsibilities of the position in question, or if the department has fundamentally changed the way it does its work. With respect to the job of police sergeant, in particular, Dr. Landy testified that he has been analyzing this position for thirty years, during which time the essential duties and responsibilities tend to have remained the same. And according to Dr. Landy, conventional wisdom places the shelf-life of a job analysis for the sergeant position at "five plus years," and up to ten years or more.
[11] Plaintiffs suggest in their post-trial memorandum that the test is subject to challenge on the basis that Semko failed to perform a differential item functioning analysis to determine whether, and if so on which items, blacks performed more poorly than whites, so that an effort could have been made to reduce adverse impact by eliminating those items on which blacks performed more poorly. However, at trial, their expert. Dr. Burroughs, did not suggest that this was required. In any event, Dr. Landy, whose testimony the court found, on the whole, to be credible, testified that the consensus of professional opinion is that differential item functioning modifications of tests is not a good idea because it reduces the validity of the examination. Dr. Landy persuasively explained:
[T]he problem with that is suppose one of those items is knowledge item and has to do with an issue like a Miranda issue or an issue in the preservation of evidence or the item that we just saw about a hostage situation. You're going to take that item out only because whites answer it more correctly than blacks do, in spite of the fact that you'd really want a sergeant to know this because the sergeant is going to supervise. A police officer is going to count on that officer to tell him or her what to do. So you're reducing the validity of the exam just for the sake of making sure that there are no items in which whites and blacks do differentially, or DIF, and he's assuming that the reason that 65 percent of the blacks got it right and 70 percent of the whites got it right was that it's an unfair item rather than, hey, maybe two or three whites or two or three blacks studied more or less that section of general orders.
[12] Plaintiffs have insinuated in their memorandum that the City's methodology in setting the cut-score in the first place was improper, yet every witness, including Dr. Burroughs, testified that it is a common and acceptable practice to establish a pass rate by reference to some multiple of the number of anticipated vacancies. Dr. Burroughs thought that while this was an appropriate way in which to set the cut-score in advance of the test, he believed that after the test results were in, and Semko had information that would have suggested, upon proper analysis, that the level of reliability of the test was in doubt, the cutscore should have been lowered.
[13] Dr. Landy cited the bar exam as an example of a heterogenous knowledge exam, and testified:
[I]f I was going to calculate the reliability, the consistency of the bar examination, it would be considerably lower than the consistency or the reliability of numerical ability... . [T]he knowledge exam in Jackson, like the bar exam or like many other kinds of licensing examinations, draw their material for test items from many different heterogenous sources. It's not a single unitary ability Landy's... Knowledge is more diverse, and that's why you would expect the reliability coefficient not to be .95, to be .79 as it is in this case.
Dr. Landy pointed out, in fact, that the reliability coefficient of the 1991 multi-state bar exam was "virtually identical" to the reliability of the written examination portion of Jackson's 1998 sergeant's exam.
[14] The court notes that Dr. Wade similarly testified that the reliability index used by Dr. Burroughs "gives you probably spuriously low coefficients on a test like this where the difficulty of items varies considerately."
[15] Thus, the court rejects plaintiffs' argument that the City could have eliminated these questions or lowered the cut-score to account for the low reliability coefficient as an alternative with less adverse impact.
[16] Dr. Wade also addressed the readability issue, and took the position, as did Dr. Landy, that once some of the more difficult or complex words that were derived directly from the source materials and which would (or should be be readily be known to a police officer, e.g., perpetrator, contraband, confiscate, apprehend, the readability level was relatively low.)
[17] Notably, plaintiffs have not suggested that the assessment center should have been used as the screening device, perhaps because as noted by Semko, the black candidates who went through the assessment center did relatively poorly on "technical knowledge, written communication, decisiveness/judgment, legal knowledge and training skills." In fact, according to Semko's report, "with regard to legal knowledge and technical knowledge, the black candidates in this group fared much better on the written test score than on the assessment center exercise which measured the same KSAs."
[18] Moreover, as Dr. Wade noted, had the City chosen to use a panel interview as a screening device, there would no doubt have been vigorous objection to what many would have perceived as a "good ole boy system" that prevented them from vying for the positions.
[19] Additionally, as Dr. Landy observed, many of those who go through the process have no realistic chance for promotion, particularly where there are limited numbers of openings, so to have them go through the entire process could be seen as setting a false expectation in the individuals, and asking them to invest a lot of time and energy into something for which they have no realistic chance of success.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 6, 2005
STATE OF TENNESSEE v. COURTNEY MEANS
Direct Appeal from the Criminal Court for Shelby County
Nos. 03-05193, 03-05200, 05 James C. Beasley, Jr., Judge
No. W2005-00682-CCA-R3-CD - Filed March 21, 2006
Defendant, Courtney Means, was convicted of three aggravated robberies and sentenced to twelve
years in each case, with two of the sentences to be served consecutively. On appeal, he argues that
the evidence is insufficient to sustain the convictions; the trial court erred in allowing the hearsay
statement of a deceased victim to be admitted as an excited utterance; and the court erred in
sentencing. Following our review, we affirm the judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.
Robert Jones, Shelby County Public Defender; Trent Hall, Assistant Public Defender; and Phyllis
Aluko, Assistant Public Defender, for the appellant, Courtney Means.
Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; Paul Hagerman, Assistant District Attorney General;
and Valerie Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
Officer John Pike of the Memphis Police Department testified that in December 2002 and
January 2003 he was assigned to “a robbery task force, assigned to handle a string of driveway
robberies that had been occurring in [the] area.” He said that the robberies of the victims, Shirley
Anderson, Michael Konrad, and Jean Sinclair, were similar to other robberies that had occurred in
the same area:
They fit similar mode of several other robberies that . . . had occurred in the
area of usually older individuals coming home from usually their grocery store or
eating or something. When they arrive home, they get out of the car, were
approached by generally two male blacks, armed with a chrome handgun, and robbed
in the driveway or at the carport as they’re exiting their vehicle.
Officer Pike said that in the robberies a “[b]urgundy Oldsmobile was used . . . it was a
Cutlass with a – one of the characteristics [sic] had a luggage rack on the trunk of it.” He said that
on January 15, 2003, he responded to a call from the dispatcher: “We got a suspicious person call
at a check cashing place on Winchester and Goodlett. Individual was at the cash checking [sic] place
attempting to cash one of the checks taken in one of our robberies that occurred earlier that day.”
At the scene, Officer Pike observed a burgundy Oldsmobile and he held Defendant, the occupant,
at gunpoint until other officers arrived. Pike said that under the carpet on the driver’s side of the
vehicle, he found “the chrome handgun which had been used and obviously described in several of
the driveway robberies,” and a check from the victim, Jean Sinclair, was “kind of crumpled up
beneath the floor mat.” There was a bullet in the chamber of the pistol. He said that Jean Sinclair
had been robbed about two and one-half hours earlier that day.
Shirley Anderson testified that she was 82 years old and a retired registered nurse. She
described being robbed on December 22, 2002:
I came home from church. It was about 12:20 p.m., and I drove into my
garage, turned off the engine, and reached over to get my purse and my church
bulletin, unlocked the door with my left hand, just turned and I saw this black man
standing there pointing a gun at me. He was back of the side-view mirror, closer, I
would say, to the left front tire.
She described how the robber took her purse and tried to take her car keys:
We just stared at each other for a little while. I could see him very plainly
through the windshield. And then he jerked open the door and said, Give me that
purse. I didn’t do anything. I was so stunned to see him standing there that I was just
like I was frozen. And so he reached in across me and grabbed my purse. I was just
sitting there with my hands in my lap . . . holding my car keys.
And after he took my purse, he tried to get my keys. And he was pulling one
way and I was pulling the other, and the key ring came apart and the keys scattered
in the car. Two of them landed on the passenger seat and another one was on the
floor of the car. So he ran then.
She said that she earlier had identified a photograph of Defendant as the person who robbed
her.
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Officer Jason Randolph said that he had been a Memphis police officer for eight years. On
January 21, 2003, he took a photospread to Ms. Anderson’s residence where she identified a
photograph of the defendant, saying she “believe[d] he is the person that robbed me.”
Michael Konrad said that on January 4, 2003, he was returning to his Memphis residence at
about 11:00 p.m. He drove his vehicle into the garage, got out, and was headed to the door when
“two young black males approach[ed] [him]. One had a gun.” He said that the two men then robbed
him: “One of the young men said get on your knees, M.F. So I got on my knees. They said all the
way down. So I laid down on my garage floor. They came up and they stole my keys and my wallet,
and they took off.” He saw the men escape in a maroon car and called 9-1-1 to report the robbery.
The police arrived within seven to ten minutes. Later, he was shown a series of photographs by
police officers and identified Defendant as one of the robbers. He also identified Defendant in court.
Sergeant John Mills of the Shelby County Sheriff’s Department testified that he had shown
Konrad six or seven photographs, one of which was that of Defendant.
Officer James Goines said that he had been a Memphis police officer for five years and on
January 15, 2003, at about 3:00 p.m. had responded to a robbery at 2332 Ridgeway. He described
the victim, Jean Sinclair, a seventy-eight year old woman, as he first saw her:
I arrived on the scene. I saw the victim inside of her house. She was crying,
shaking, was not able to speak to me. There was another gentleman on the scene.
We were trying to calm her down. I was trying to get the information what she could
tell me what happened[.]
She was very shaken up, very emotional. She had been crying. Her eyes
were puffed up and she was physically shaking. . . . Said she was arriving home. She
was pulling into her little parking area behind the condo. Approached by a male
black. Approached her with a silver handgun. Hit her in the head with the silver
handgun, took her purse and ran away.
Rhonda Vandiver testified that she was working at a Cash Depot store on January 15, 2003,
when Arkeesha Martin, a previous customer, came into the store and attempted to cash a personal
check. Vandiver said that normally she cashed only payroll and tax checks and this one was “odd”
because it “didn’t have a signature on there but it had writing on there.” She said the check was
drawn on the account of Jean Sinclair, but there was “no signature.” The check was made out to
Arkeesha Martin for $1500 and “said college tuition and good luck there where the signature was.”
After Vandiver informed Martin that she could not cash the check, Martin left the store. Vandiver
then telephoned Ms. Sinclair about the check. Vandiver said that a few minutes later, Martin
returned with the check and “now it was signed.” Vandiver then telephoned 9-1-1 to report the
matter. The police arrived “[v]ery quickly” and arrested several people, including Defendant.
-3-
Timothy Steele testified that he was a Memphis police officer and on January 15, 2003, had
received a “suspicious party” call to the Cash Depot store. He said that he and another officer
detained Defendant at the scene and searched his vehicle. They found “a silver handgun, a couple
of checks, looked like from [a] personal account, and some marijuana.”
Sergeant Timothy Cooper of the Memphis Police Department testified that on January 15,
2003, he was assigned to the crime response unit. He said that he found a gun and a blank check in
the name of Jean C. Sinclair under the floormat on the driver’s side of the vehicle he searched.
Defendant testified as his only witness, saying, without elaboration, that he had not robbed
any of the three victims. On cross-examination, he acknowledged that, when he was arrested, there
was a silver handgun under the driver’s seat of his vehicle “similar” to that which earlier had become
an exhibit in his trial, as well as a check bearing the name “Jean Sinclair.” He said that the pistol
was “already” under the driver’s seat when he got into the car and that the gun was his. The check
was put underneath the driver’s seat by Arkeesha Martin, but he had “no idea” where she had gotten
it. Defendant said that the vehicle he was operating was a maroon four-door Oldsmobile. He said
that he had given Martin a ride to the grocery store and the check cashing store and had parked his
car in front of the grocery store because she had gone there first.
ANALYSIS
On appeal, Defendant argues that the evidence is insufficient to support the convictions, that
the trial court erred in allowing hearsay testimony as to the robbery of Jean Sinclair, and that the
court erred in sentencing.
I. Sufficiency of the Evidence
Defendant claims that the evidence is insufficient to support his convictions based upon his
argument that the convictions cannot stand unless this court “determines that the evidence, if
believed by the jury, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt.”
In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question for the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also Tenn. R. App. P. 13(e) (“Findings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State
v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn.
Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
-4-
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of justice
to determine the weight and credibility to be given to the testimony of witnesses. In
the trial forum alone is there human atmosphere and the totality of the evidence
cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
473, 370 S.W.2d 523, 527 (1963)). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Robbery is defined as “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” T.C.A. § 39-13-401(a) (2003). The offense is
elevated to aggravated robbery if it is accomplished with a deadly weapon or the victim suffers
serious bodily injury. Id. § 39-13-402(a)(1)-(2). .
Shirley Anderson, one of the victims, testified that, as she was arriving home from church
and had pulled her car into the garage, she saw a man standing by the driver’s side door, pointing a
silver-colored pistol at her. He jerked her door open and told her to give him her purse. She did not
move so he grabbed it. Her key ring came apart as they were struggling over it, and he then ran. She
testified she had identified a photograph of Defendant as the man who robbed her. By the verdict
of the jury, it is obvious that it accredited the testimony of Anderson, believed that her identification
of Defendant was sufficient, and disbelieved Defendant’s statement that he was not the one who
robbed her. We conclude that this evidence is clearly sufficient for a jury reasonably to find
Defendant guilty of the aggravated robbery of Anderson.
Michael Konrad, one of the victims, testified that on January 4, 2003, as he was returning
home and had driven into his garage, two men, one of whom was armed with a silver pistol,
approached him and ordered him to his knees. He complied and the men took his keys and wallet.
He saw them leave in a maroon automobile. Konrad identified Defendant both in a photospread and
in the courtroom as the robber with the pistol. Based upon this evidence, a jury reasonably could
have found Defendant guilty of aggravated robbery.
The proof regarding the third victim, Jean Sinclair, was that she was robbed by a black male
just before 3:00 p.m. on January 15, 2003. The offense occurred after the victim parked her car
behind her condominium. The perpetrator hit the victim on the head with a silver handgun, took the
victim’s purse, and ran away.
-5-
Later that afternoon, Arkeesha Martin attempted to cash a check on the victim’s checking
account a Cash Depot. This woman was linked to Defendant, who was sitting in a parked car outside
of the Cash Depot. A search of the vehicle resulted in the seizure of a silver colored (chrome)
handgun and a crumpled check, which belonged to the victim, in the driver’s side area of the vehicle.
Defendant testified that he owned the handgun found in the car, that he loaned the car to Ms.
Martin earlier in the day, and that he had no knowledge about the robbery of Ms. Sinclair and no
knowledge that Ms. Martin had attempted to cash a stolen check.
The jury obviously accredited the testimony of the State’s witnesses and rejected Defendant’s
testimony. Circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe,
726 S.W.2d 896, 899-900 (Tenn. 1987). Defendant correctly argues that when the State’s case is
based entirely upon circumstantial evidence, the evidence must exclude every other reasonable
theory or hypothesis other than guilt. Id. at 900. Defendant’s theory that some other black male
committed the robbery of Ms. Sinclair, and that Ms. Martin put Ms. Sinclair’s check inside
Defendant’s car without his knowledge, exists only because of Defendant’s testimony. The jury
weighed the evidence and chose what testimony to credit and discredit. Clearly, the jury discredited
Defendant’s testimony. Likewise, his theory of what happened , even if it was “reasonable,” was
excluded by circumstantial evidence. Defendant is not entitled to relief on the issue.
II. Hearsay Testimony of Jean Sinclair
As to Jean Sinclair, Officer Goines testified that she told him she had been robbed by a man
with a silver pistol and that the man had taken her purse. Approximately two hours later, Defendant
was waiting in his vehicle as Arkeesha Martin tried to cash an unsigned check from the victim’s
checkbook. After being turned down because the check was unsigned, Martin left and later returned
with the check, which then was signed. Police officers were called and found Defendant and his
vehicle, which contained a silver pistol and the blank check of Jean Sinclair under the floormat on
the driver’s side.
Defendant asserts that the trial court erred in allowing Officer Goines to testify as to Jean
Sinclair’s statement to him about being robbed. Ms. Sinclair made the statement to Officer Goines
on the day of the robbery. Apparently, Ms. Sinclair died of causes unrelated to the robbery prior to
the trial. Defendant argues that allowing Goines to testify regarding Ms. Sinclair’s statement was
contrary to the holding in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) as well as
Article I, Section 9 of the Tennessee Constitution, in that it violated his right to confront his accuser.
Defendant also argues that the statement was, in any event, inadmissible because it did not fall within
the “excited utterance” exception to the rule prohibiting hearsay evidence. The State argues that
Defendant’s rights were not violated because admission of the statement fell under the excited
utterance exception to the rule against hearsay, see Tenn. R. Evid. 803(2), and that the statement
does not violate Defendant’s constitutional right to confrontation of a witness.
-6-
We conclude that Defendant has waived any objection to Officer Goines’ testimony on the
grounds that it violates Crawford v. Washington because he failed to raise this objection at trial and
in his motion for a new trial. See Tenn. R. App. P. 3(e). Our rules of appellate procedure provide
that an issue may not be raised for the first time on appeal. Tenn. R. App. P. 36(a). As such,
Defendant’s failure to raise this objection either at trial or in his motion for new trial precludes him
from doing so now. Because the issue is waived, it may be considered only if plain error exists.
Rule 52(b) of the Tennessee Rules of Criminal Procedure provides that “[a]n error which has
affected the substantial rights of an accused may be noticed at any time, even though not raised in
the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court
where necessary to do substantial justice.” On these facts however, we decline to address plain error.
Defendant is not entitled to relief on this issue.
Although Defendant failed to object pursuant to Crawford at trial, he did object on the
grounds that Officer Goines testimony was hearsay and therefore inadmissable. The State
maintained that the testimony was admissible because Ms. Sinclair’s statements to Officer Goines
were excited utterances constituting an exception to the rule against hearsay. See Tenn. R. Evid.
803(2).
An excited utterance is defined 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.” See
Tenn. R. Evid. 803(2). Pursuant to Rule 803 of the Tennessee Rules of Evidence, an “excited
utterance” is an exception to the general rule excluding hearsay evidence. Tenn. R. Evid. 803(2).
In order for a statement to be admissible under this exception, (1) there must be a startling event or
condition, (2) the statement must relate to the startling event or condition, and (3) the statement must
be made while the declarant is under the stress or excitement from the event or condition. State v.
Dellinger, 79 S.W.3d 458, 486 (Tenn. 2002) (citing State v. Gordon, 952 S.W.2d 817, 820
(Tenn.1997)). Additionally, “[i]t is well established that trial courts have broad discretion in
determining the admissibility of evidence, and their rulings will not be reversed absent an abuse of
that discretion. “Bellinger, 79 S.W.3d at 486 (citing State v. McLeod, 937 S.W.2d 867, 871 (Tenn.
1996)).
In the present case, the trial court admitted Ms. Sinclair’s statements as excited utterances
based on the context and nature of the statements as testified to by Officer Goines during the jury-out
hearing on the matter. Based on that testimony, the court properly found that the robbery qualified
as a startling event. The proof showed that Ms. Sinclair was “crying, shaking, [and] was not able
to speak” when Officer Goines arrived at the scene of the robbery. This evidence supports a finding
that her statements related to the startling event and were made while she was under the stress of the
event. Thus, the trial court properly admitted the statements under Rule 803(2). Defendant is not
entitled to relief on this issue.
-7-
III. Sentencing
Defendant argues that the trial court erred in sentencing, as to the length of the sentences and
by ordering that two of the sentences be served consecutively.
When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2003). This
presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9
(Tenn. 2000). However, this court is required to give great weight to the trial court’s determination
of controverted facts as the trial court's determination of these facts is predicated upon the witnesses’
demeanor and appearance when testifying.
In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. T.C.A. §§ 40-35-103, -210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim.
App. 2001).
The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. T.C.A. § 40-35-401, Sentencing Commission Cmts.; Ashby, 823
S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence imposed by the
trial court is erroneous.
In sentencing Defendant, the trial court, reviewing the presentence report, considered at
length the sentencing principles set out in the Criminal Sentencing Reform Act of 1989, as well as
the relevant facts, arguments of counsel, statement of the defendant, and presentence report, and
determined which enhancement and mitigating factors applied.
According to the presentence report, Defendant was 20 years old and a high school graduate.
He said that he had five previous employers but could not recall the dates he was employed. The
report showed that he had four prior convictions for aggravated robbery as well as a conviction for
assault. The court applied as an enhancement factor the fact that he had five prior convictions and
found no mitigating factors that were applicable. On appeal, Defendant argues that the trial court
should have applied, as mitigating factors, his youth, his apparent lack of a juvenile record, his
-8-
having graduated from high school and attended community college, his having been employed at
several jobs, and his having family members living in Memphis. All of this, according to
Defendant’s brief, “suggests that Defendant has a foundation that will enhance his potential for
rehabilitation.”
We conclude that the trial court properly considered the principles of sentencing and the
record supports the setting of Defendant’s sentences. Although only 20, he has a substantial record
of convictions for serious felonies. Even if the trial court erred in not applying the mitigating factors
urged on appeal, which we note were not argued before the trial court, they would have been entitled
to little weight.
Finally, we will consider the decision of the trial court that the sentences for two of
Defendant’s three convictions should be served consecutively. In this case, the trial court was
required to find by the preponderance of the evidence that at least one of seven criteria in Tennessee
Code Annotated section 40-35-115 was met. See T.C.A. § 40-35-115. Here, the trial court applied
criterion (4): “The defendant is a dangerous offender whose behavior indicates little or no regard
for human life, and no hesitation about committing a crime in which the risk to human life is high.”
Id. § 40-35-115(b)(4). Criterion (4) has been specifically discussed by our supreme court in State
v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), where the court held:
[T]he imposition of consecutive sentences on an offender found to be a dangerous
offender requires, in addition to the application of general principles of sentencing,
the finding that an extended sentence is necessary to protect the public against further
criminal conduct by the defendant and that the consecutive sentences must
reasonably relate to the severity of the offenses committed.
Id. at 939. This requirement of additional findings has been limited to criterion (4). See State v.
Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999).
In determining that two of Defendant’s sentences should be served consecutively, the trial
court noted that all three victims were “elderly” and had been followed to their homes by the
defendant. To the court, this showed that Defendant had “little or no regard for human life . . . and
no hesitation about committing a crime when the risk to [the victims] is very high,” showing that he
was a “dangerous offender.” As for the need to incarcerate Defendant for an extended period of time
to protect society, the court found that Defendant had “expressed and shown a complete lack of
societal skills and living in society.” Further, the court found that incarceration for an extended
period was necessary because Defendant had “been convicted of seven separate aggravated robberies
of elderly people accosting them at their homes after stalking them and following them home and
then robbing them of their property.”
We conclude that the record supports the determination of the trial court that two of
Defendant’s sentences should be served consecutively.
-9-
CONCLUSION
Based upon the foregoing authorities and reasoning, the judgments of the trial court are
affirmed.
___________________________________
THOMAS T. WOODALL, JUDGE
-10-
|
849 F.2d 605Unpublished 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.William Morris McQUAIG, Jr., Plaintiff-Appellee,v.Clyde WALKER, Officer; William McGhee, Officer, Defendants-Appellants,andMark Moore, Officer; S. Lipscomb, Officer, Defendants.William Morris McQUAIG, Jr., Plaintiff-Appellant,v.Mark MOORE, Officer, Defendant-Appellee,andClyde Walker, Officer; William McGhee, Officer; S.Lipscomb, Officer, Defendants.
No. 87-7516.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 4, 1988.Decided June 1, 1988.
Tiare Bowe Smiley, Assistant Attorney General (Lacy H. Thornburg, Attorney General, on brief), for appellant.
Judith C. Behar, for appellee.
Before HARRISON L. WINTER, Chief Judge, and SPROUSE and WILKINS, Circuit Judges.
PER CURIAM:
1
Correctional officers Clyde Walker and William McGhee appeal from the district court's judgment entered on a jury verdict assessing them $1 compensatory damages and $250 punitive damages in William Morris McQuaig's 42 U.S.C. Sec. 1983 action against them for using excessive force. Correctional officers Mark Moore and S. Lipscomb were found not liable in this action. McQuaig appeals from the jury's award of $1,000 in favor of Moore on Moore's counterclaim for assault and battery. We affirm both judgments.
2
McQuaig is an inmate at the Blanch Youth Center, a North Carolina correctional facility. Walker, McGhee, and Moore are correctional officers at the facility. Blanch Youth Center is an intensive management prison unit used to segregate dangerous and problem youth inmates who cannot function in a general youth prison population.
3
On February 1, 1985, McQuaig was assigned to disciplinary segregation at Blanch. Officers Walker and McGhee were supervising the exercise of inmates, which, because of inclement weather on that day, took place in the hallway of the segregation unit. All of the exercising inmates were restrained with handcuffs attached to waist chains. During the exercise period, McQuaig engaged in an elbowing fight with another prisoner. There is no dispute that Walker and McGhee used fiberglass batons to break up the altercation, that McQuaig received blows to the head, and that upon returning McQuaig to his cell the officers again struck him several times with their batons. Furthermore, it is also undisputed that McQuaig struck Officer Moore with his fist when Moore released McQuaig from his handcuffs and that Moore suffered a broken nose from the blow. Beyond these uncontroverted facts, however, the parties at trial presented different versions of the events that transpired that day.
4
According to McQuaig, while he and the other prisoner were attempting to elbow each other, Officers Walker and McGhee approached them, threw McQuaig to the floor, and hit him about the head, shoulders, and forehead. After a nurse sutured his minor forehead wounds, the officers returned McQuaig to his cell, and according to McQuaig, they again struck him with their batons after Officer Moore removed his hand and waist restraints in the cell doorway. McQuaig testified that after his handcuffs were removed, he attempted to stop the blows by striking out at the guards and accidentally hit Moore. Moore left, but the other officers remained and continued to strike McQuaig around the head, shoulders, arms, and groin.
5
According to the officers, McQuaig attacked his fellow inmate in the hallway and the two were separated. When McGhee took McQuaig by the arm to escort him back to his cell, the latter broke away swinging his elbows. At that point, Walker struck McQuaig with his baton on the forehead, causing a wound that the nurse subsequently covered with two butterfly adhesive strips. Later, at McQuaig's cell, McQuaig suddenly and without provocation struck Officer Moore in the face with his fist, while Moore was removing McQuaig's restraints. Moore was knocked unconscious by the blow, and McQuaig burst out of his cell. Walker drew his baton and struck McQuaig across the arm as the officers forced him from the hallway back into his cell. The officers then continued to strike McQuaig with their batons, but quit after McQuaig threw up his hands in surrender.
6
The jury found that Walker and McGhee used unnecessary force and violated McQuaig's eighth amendment right to be free of cruel and unusual punishment. It awarded McQuaig both compensatory and punitive damages. On Moore's ancillary counterclaim for assault and battery, the jury found in Moore's favor.
I.
7
All parties on appeal argue that the trial court erred in instructing the jury. The officers contend that the court erroneously refused to give their proffered instruction concerning the excessive force necessary to justify a finding of an eighth amendment violation. They argue that only such excessive force as would "shock the conscience" could sustain a jury's finding against them. In instructing the jury on the elements of an eighth amendment violation, the district court stated that the jury must find the defendants "knowingly beat or used force while the plaintiff was in custody ... [and] that force was excessive and unreasonable." It also instructed them:
8
Not every push or shove violates the Constitution, even if in highsight [sic] it appears that the push or shove was unnecessary. Rather, in order for you to answer the first issue yes, the plaintiff must prove by the preponderance of the evidence that the amount of force used by defendants ... was unreasonable, excessive, and unjustified under the circumstances then existing.
9
In determining whether the amount of force used was unreasonable, excessive, and unjustified, you should consider four factors. First, you should consider the need for the application of force in order to restore discipline or control the person in custody. Second, you should consider the relationship between the need to use force and the amount of force so used. Third, you should consider the extent of injury, if any, inflicted upon the person in custody. And fourth, you should consider whether the force was applied in a good faith effort to maintain or restore discipline, or was maliciously applied for the very purpose of causing harm.
10
In instructing on punitive damages, the court told the jury that:
11
If the jury should find by the preponderance of the evidence ... that the acts or omissions of the defendant or defendants, which proximately caused actual injury or damage to the plaintiff, were maliciously or wantonly or oppressively done, then the jury may [award punitive damages].
12
An act is maliciously done if prompted or accompanied by ill will, spite or grudge toward the injured person individually. An act is wantonly done if done in a reckless or callous disregard of or indifference to the rights of one or more persons, including the injured person.
13
An act is oppressively done if done in a way or manner which injures or causes damages or otherwise violates the rights of another person with unnecessary harshness or severity, as by misuse or abuse of authority or power, or by taking advantage of some weakness or disability or misfortune of another person.
14
The Supreme Court, in its recent decision in Whitley v. Albers, 475 U.S. 312 (1986), enunciated the standard for judging the excessive force necessary to establish a violation of the eighth amendment's prohibition against cruel and unusual punishment. As a general requirement, a prisoner must allege and prove that prison officials acted wantonly and unnecessarily in the infliction of pain. Id. at 319-20. Moreover, this standard must be "applied with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged." Id. at 320. In the present case, the defendant officers were not confronted with a riot situation such as that before the Court in Albers, and we are persuaded that the district court's instructions adequately captured the Albers standard as it applied in the circumstances of this case.1 See id. at 320-21.
15
The trial court instructed the jury that for it to find for McQuaig the force used by the officers must be proved to be unjustifiable, unreasonable, and excessive. They were told to consider whether the force was applied in a good faith effort to maintain discipline or was maliciously applied for the very purpose of causing harm. The court also described wantonness in its punitive damage instructions. The jury's punitive damage verdict reflects that it found the degree of excessive force necessary to establish a violation of the eighth amendment. In summary, the trial court's instructions taken as a whole paralleled in large part Albers' teaching as to how a jury should be instructed in prison discipline cases. We do not advance the trial court's instructions as model charges nor as necessarily appropriate to a wide range of varying circumstances. We hold only that read in their totality the court's instructions adequately presented the standards on which the jury should judge the issue of excessive force in the eighth amendment context presented here.
II.
16
McQuaig appeals the judgment of $1,000 against him on Moore's ancillary assault and battery claim. The sole issue McQuaig raises is whether the district court erred in refusing to grant him a self-defense instruction. McQuaig requested the court instruct the jury concerning self-defense as it is defined in the North Carolina pattern instructions:
17
The circumstances were such as would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself from bodily injury or offensive physical contact, and the circumstances did create such belief in the plaintiff's mind.
18
The district court refused to give a self-defense instruction, finding there was not sufficient self-defense evidence to raise an issue for the jury. We agree.
19
We, of course, do not suggest that an inmate is powerless to defend himself against unprovoked or unlawful attacks. In judging whether the initial use of force by prison officials justifies a defensive response, however, we must view the facts in light of the general prison environment and the events surrounding the altercation. Each incident may present its own problems of factual interpretation. Here, McQuaig started a fight, the officers were required to return him to his cell, and McQuaig lashed out at them the moment McQuaig's handcuffs were removed. A trial judge "is not obliged to submit to a jury a theory of an occurrence, which is obviously not tenable, merely because there is some testimony to support it." Blackley v. Powell, 68 F.2d 457, 459 (4th Cir.1934). We agree with the district court that under the circumstances, there was insufficient evidence of self-defense to justify submitting the issue to the jury.
20
The judgment of the district court is, therefore, affirmed.
21
AFFIRMED.
1
As we stated in the fifth amendment due process context in Justice v. Dennis, 834 F.2d 380, 383 (4th Cir.1987) (en banc):
"The question is not, however, whether better instructions were possible, but whether the instructions 'taken as a whole, fairly and adequately state[d] the pertinent legal principles involved.' "
(quoting Chavis v. Finnlines Ltd. O/Y, 576 F.2d 1072 (4th Cir.1978)).
|
174 S.W.3d 516 (2005)
KROGER LIMITED PARTNERSHIP I, d/b/a Kroger L-327, Appellant,
v.
CABINET FOR HEALTH SERVICES, COMMONWEALTH OF KENTUCKY, Appellee.
No. 2004-CA-001965-MR.
Court of Appeals of Kentucky.
September 30, 2005.
*517 Kenneth S. Handmaker, Bradley E. Cunningham, Louisville, KY, for appellant.
Michael Deep, Assistant Counsel, Office of Legal Services, Frankfort, KY, for appellee.
Before BARBER and JOHNSON, Judges; MILLER, Senior Judge.[1]
OPINION
MILLER, Senior Judge.
Kroger Limited Partnership I, d/b/a Kroger L-327 (Kroger) appeals from an Opinion and Order of the Jefferson Circuit Court which upheld an order of the Secretary of the Cabinet for Health Services (Secretary). The Secretary's order affirmed the decision of the Administrative Law Judge (ALJ) suspending Kroger from participation in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC)[2] program for one year on the basis that Kroger had sold unauthorized food items in violation of WIC program voucher redemption regulations.
Because there has been a material change in circumstances subsequent to the ALJ's decision which calls into doubt its ongoing soundness, we vacate and remand for additional proceedings in light of changed circumstances.
Kroger is located at 2710 West Broadway in Louisville, Kentucky. The store has been a long-time vendor in the WIC program. WIC receives 100% of its funds from the federal government. The Cabinet for Health Services, Commonwealth of Kentucky (Cabinet), through its Department of Public Health, administers the program. The program provides certain health and nutrition services to qualified participants. The participants are eligible pregnant, nursing, and post-partum women, infants, and children. The participants receive vouchers, which they then present to authorized food vendors pursuant to a contractual agreement between each vendor and the Cabinet. The vendor then receives reimbursement for the cost of the food items through a centralized WIC bank account.
The federal statutes and regulations under which the WIC program operates require that the Cabinet conduct covert, on-site compliance investigations of at least 5% of the authorized WIC vendors in the Commonwealth. See 7 C.F.R., part 246.12(j)(2). When conducting a compliance investigation, the Cabinet sends an investigator posing as a WIC participant to a participating store to purchase WIC authorized food items for the purpose of determining the extent of the vendor's compliance with the program requirements, and to collect evidence of program violations. In March and April of 2001 (March 26, April 4, April 9, April 18, and April 20) the Cabinet conducted five such compliance buys at Kroger. The buys were conducted by Cabinet investigator *518 Beverly Turner, who posed as a WIC participant during the compliance buys.
As a result of the foregoing compliance buys, Turner prepared an investigative report, which, in part, stated as follows:
1. On March 26 and April 4, 2001, the actual purchase price was not entered on the WIC check at the time of purchase. This is a violation of 902 KAR 4:040, section 12(1)(a)1 (April 12, 2000). The penalty for a first offense of this nature is a written warning.
2. On March 26, April 4, April 9, April 18 and April 20, 2001, the WIC program was charged for supplemental food provided in excess of the quantity authorized by the WIC check. This is a violation of 902 KAR 4:040, section 12(1)(o)1 (April 12, 2000). The penalty for a first offense of this nature is a one (1) year disqualification of the vendor from the WIC program.
By letter dated June 29, 2001, the Cabinet notified Kroger of the alleged violations and the associated penalties.
Following the issuance of the report and notice to Kroger, on March 14 and 15, 2002, an administrative hearing was conducted concerning the alleged violations before the ALJ. On June 13, 2003, the ALJ issued his Findings of Fact, Conclusions of Law, and Recommended Decision.
The ALJ determined that the violations had occurred as described in the report, and recommended that the sanctions recommended by the Cabinet be imposed against Kroger, including a one-year suspension from the WIC program. On August 28, 2003, the Secretary issued a Final Order adopting as her own the recommended decision of the ALJ.
Kroger subsequently appealed the Secretary's Order to the Jefferson Circuit Court pursuant to KRS 13B.140. On August 25, 2004, the circuit court entered an Opinion and Order affirming the Secretary's Order. This appeal followed.
The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law. See American Beauty Homes Corporation v. Louisville & Jefferson County Planning & Zoning Commission, 379 S.W.2d 450, 457 (Ky.1964). Where the ALJ determines that a party has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986). Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky.1971). Although a party may note evidence which would have supported a different conclusion than that which the ALJ reached, such evidence is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.1974). The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law. Special Fund v. Francis, supra, at 643.
Kroger makes various arguments regarding why, on the merits, the ALJ's decision was incorrect, including that the Cabinet failed to follow its own mandatory procedures, that the Federal and State regulations relied upon by the Cabinet exceed the authority and language of the enabling legislation, and that the cashiers who rang-up the improper sales were not acting within the scope of their employment. However, based upon our disposition *519 of this case, we need not address these issues on the merits.
902 KAR 4:040 § 13 provides that prior to suspending a store from participation in the WIC program, it must first analyze the impact of such a suspension on the local WIC participants who rely upon the store for their WIC purchases. The section states, in relevant part, as follows:
Participant Access Determination and Civil Money Penalty.
(1) Except for a violation specified in Section 12(1)(e) of this administrative regulation, prior to disqualifying a vendor for a violation specified in Section 12 of this administrative regulation, the WIC Program vendor manager shall determine if disqualification of the vendor will result in inadequate participant access.
(2) The determination and documentation of adequate participant access shall be made using the criteria provided in subsections (4) and (5) of this section.
(3) Mileage shall be measured by automobile odometer.
(4) There is adequate participant access, if:
(a) There is another vendor within seven (7) miles of the vendor; or
(b) There is another vendor between the subject vendor and a health department service site, and the other vendor is within seven (7) miles of the health department service site;
(c) There is no geographic barrier, such as an impassable mountain or river, between the subject vendor and the next accessible vendor; or
(d) The subject vendor is redeeming food instruments for formulas classified as special formulas and there is another vendor within seven (7) miles that can obtain the formula.
(5) If five (5) or more total food packages are redeemed by the subject vendor in the calendar month period immediately preceding the issuance of a sanction letter, the WIC coordinator shall be consulted to determine if a special circumstance exists that will result in inadequate participant access.
(6) If inadequate participant access is determined, a civil money penalty shall be assessed for a violation listed in Section 12 of this administrative regulation. The civil money penalty shall be calculated in accordance with the procedures outlined in the Vendor Manual, incorporated by reference.
(7) The WIC Program shall negotiate an installment plan for the collection of a civil money penalty.
(8) A vendor that fails to pay, partially pays, or fails to timely pay a civil money penalty, shall be disqualified for the length of time corresponding to the most serious violation.
902 KAR 4:040 § 13.
In his Findings of Fact, Conclusions of Law, and Recommended Decision, the ALJ made the following findings of fact and conclusions of law relevant to the impact of a one-year suspension of Kroger on participant access to a WIC outlet:
FINDINGS OF FACT
....
(17) Sullivan testified that she believes that there are nineteen (19) other WIC-approved vendors within seven (7) miles of Kroger L-327, the closest being a Winn Dixie approximately two-tenths of a mile from Kroger L-327 which is located at 2809 West Broadway. Sullivan further testified that from October 1, 2000, through September 30, 2001, this same Winn Dixie averaged more WIC related transactions each month than Kroger L-327. She also testified that this Winn Dixie has or can get all WIC-approved *520 food items. (Citations omitted).
....
(20) Before disqualifying a vendor, the Department must determine if the disqualification of the vendor would result in inadequate access for the WIC participants. Boyles testified that the WIC coordinator in the Louisville area was contacted to see if there existed a special circumstance that would cause inadequate participant access if Kroger L-327 were to be disqualified from the program for one (1) year. The WIC coordinator reported that no such circumstance existed. Boyles also testified that she personally had determined that the Winn Dixie store two-tenths of a mile away was a comparable store and that it provides every WIC-approved food item as does Kroger L-327. Boyles further testified that there existed no other geographic barriers between Kroger L-327 and the next accessible vendor. Accordingly, Boyles concluded that disqualifying Kroger L-327 from the WIC Program for one (1) year would not result in inadequate participant access in that area of Louisville. (... 7 C.F.R., Part 246.12(f)(2)(xxi); 902 KAR 4:040, Section 13).
CONCLUSIONS OF LAW
. . . .
(9) As required by federal and state regulations, the Cabinet has considered whether disqualification of Kroger L-327 from the WIC Program for a period of one (1) year would create inadequate participant access for WIC Program participants. 7 C.F.R., Part 246.12(f)(2)(xxxi) and 902 KAR 4:040, Section 13. As a result of its investigation, the Department determined that Kroger L-327's disqualification from the WIC Program would not create a problem of inadequate access for WIC participants due to the existence of nineteen (19) other WIC-approved vendors within seven (7) miles of Kroger L-327 (with the closest being only two-tenths of a mile away). This determination is not subject to administrative review.[[3]]
From the foregoing, and from the record generally, it is apparent that the Cabinet's determination that the closing of Kroger for one year would not have an adverse impact on local WIC participants was based in significant part on the circumstance that there was a Winn Dixie store adjacent to Kroger which would provide a reasonable and convenient alternative to Kroger's local WIC customers. Our attention was drawn to the ongoing viability of the Cabinet's participant impact analysis by the following dicta contained in the circuit court's opinion affirming the Cabinet's decision:
Finally, this Court has very grave concerns about the impact of the Secretary's decision on the participants in the L-327's neighborhood. These concerns are exacerbated by the pending closure of all the Winn-Dixie stores in the Louisville area. The closures were announced after the administrative hearing. Unfortunately, this Court cannot consider new evidence. Mill Street Church of Christ v. Hogan, Ky.App., 785 S.W.2d 263 (1990).[[4]]
*521 However, this Court strongly urges the Cabinet to look at the community and participants affected by this action. The loss of both L-327 and Winn-Dixie will have a calamitous impact on the residents of this neighborhood. The availability of other, smaller, vendors will never adequately provide for the needs of WIC and Foodstamp Program participants in a neighborhood where many of the residents do not drive and must walk or take public transportation. Those residents will be forced to go to several different locations to complete their shopping. This will undoubtedly cause considerable hardship to these inhabitants. Regretfully, this Court is without the authority to prevent this under the current state of the law.
At oral argument in this matter, the parties acknowledged that the Winn Dixie store formerly located at 2809 West Broadway is no longer in operation, and that no other grocery business is operating at the site. As the Cabinet's participant access analysis was based in significant part upon the premise that there would be a full-service WIC grocery outlet in operation at the former Winn Dixie location, the ongoing soundness of the Cabinet's participant access analysis is called into serious question.
If the suspension of a store will result in an undue adverse impact upon WIC participants, the Cabinet is authorized to impose sanctions other than suspension. 902 KAR 4:040 § 13(6). Because of the nature of this case and the potential devastating consequences to the affected neighborhoods if the only full-service WIC outlet in the area were to be closed, the realities compel that we recognize the change in circumstances which has occurred subsequent to the administrative hearings in this case. See City of Tulsa v. Chamblee, 188 Okla. 94, 106 P.2d 796 (1940) (Generally, in exercising appellate jurisdiction a court confines its investigation of facts to record before it as presented when appeal was perfected, but it may in proper cases take cognizance of facts arising during pendency of appeal where such facts bear directly on question presented on appeal.); Edward E. Gillen Co. v. John H. Parker Co., 170 Wis. 264, 174 N.W. 546 (1919) (A conceded fact occurring subsequently to the original judgment in the court below should be considered in determining appeal.); Rudnicki v. Town of Valley Brook, 424 P.2d 973 (Okla.1967) (Court may, in proper cases, take cognizance of acts arising during the pendency of appeal where such facts bear directly on question presented on appeal.); cf. Van't Rood v. County of Santa Clara, 113 Cal.App.4th 549, 6 Cal.Rptr.3d 746 (2003) (Except in rare cases where events subsequent to the lower court ruling under review have rendered the case totally moot, the appellate court does not, and may not, consider subsequent events.).
While we recognize that a reviewing court should recognize changes occurring subsequent to trial proceedings only in the rarest of circumstances, we believe that the case before us presents such a circumstance. In our view, the real parties in interest in this case are the pregnant, nursing, and post-partum women, *522 and the infants and children in the affected neighborhoods. We take judicial notice that West Louisville, the area at issue, is an economically depressed area and that many citizens of the area must rely upon walking as a primary means of transportation. Under these circumstances, a local full-service WIC grocery outlet is crucial to the success of the program.
Because the ongoing soundness of the Cabinet's participant access study has been called into serious question by events occurring subsequent to the administrative proceedings, we vacate the decision of the Secretary and remand the matter to the ALJ for additional proceedings consistent with this opinion.
ALL CONCUR.
NOTES
[1] Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
[2] WIC is administered pursuant to 42 USC § 1786, the "Child Nutrition Act of 1966," as amended Pub.L. No. 103-448, 108 Stat. 4699 (1994), and 7 C.F.R. Part 246. To effect the Program at the state level, it is administered by the Cabinet for Human Resources, Department of Health Services, pursuant to the federal statutes, regulations and guidelines; KRS 194A.050(1); and 902 KAR 4:040.
[3] Without citation, the ALJ appears to intimate that the Cabinet's determinations with regard to participant access are "not subject to administrative review." We reject this view. See, e.g., Kentucky Constitution § 2 (Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.).
[4] Mill Street Church of Christ v. Hogan is a Workers' Compensation case which includes the statement "KRS 342.285 states that the reviewing court should not consider any new or additional evidence, and it should not substitute its judgment as to the weight of evidence on questions of fact." KRS 342.285(2) provides, among other things, that upon appeal from a Workers' Compensation ALJ to the Workers' Compensation Board "[n]o new or additional evidence may be introduced before the board except as to the fraud or misconduct of some person engaged in the administration of this chapter...." As the present proceedings are not subject to Chapter 342, Hogan and KRS 342.285 have no application in this case.
|
11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
In the interest of M.S., N.S., * From the 259th District Court
C.S., and K.S., children, of Jones County
Trial Court No. 024152
No. 11-19-00132-CV * October 4, 2019
* Memorandum Opinion by Stretcher, J.
(Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J., sitting
by assignment)
(Willson, J., not participating)
This court has inspected the record in this cause and concludes that there
is no error in the order below. Therefore, in accordance with this court’s
opinion, the order of the trial court is in all things affirmed.
|
545 S.E.2d 788 (2001)
Doris FRIEND-NOVORSKA, Plaintiff,
v.
James C. NOVORSKA, Defendant.
No. COA00-254.
Court of Appeals of North Carolina.
May 15, 2001.
*790 Hayes Hofler & Associates, P.A., by R. Hayes Hofler, Durham, for plaintiff-appellant.
Darsie, Sharpe, Mackritis & Dukelow P.L.L.C., by Jimmy D. Sharpe and Lisa M. Dukelow, Durham, for defendant-appellee.
GREENE, Judge.
Doris Friend-Novorska (Plaintiff) appeals an order filed 7 September 1999 awarding Plaintiff temporary alimony from James C. Novorska (Defendant).
This case was originally heard by this Court based on Plaintiff's appeal from an alimony order entered on 17 October 1997. See Friend-Novorska v. Novorska, 131 N.C.App. 867, 509 S.E.2d 460 (1998) (Friend-Novorska I ). The following facts are based on the facts recited in Friend-Novorska I: Plaintiff and Defendant were married on 13 February 1982 and separated on 30 June 1995. No children were born to the marriage. Plaintiff filed a complaint against Defendant on 3 January 1996, seeking postseparation support, alimony, equitable distribution, and attorney's fees. Subsequent to a hearing on Plaintiff's claim for alimony, the trial court made the following pertinent findings of fact: Plaintiff has monthly expenses of $3,089.00 "`to maintain the standard of living to which she has become accustomed during the last several years of the marriage'"; Plaintiff has an available net income of $1,745.22 per month from her employment and "`is in need of a contribution on a monthly basis of $1,343.78 to meet her monthly living needs'"; Defendant has a net monthly income from his employment of $4,077.00 and a net investment income of approximately $810.00 per month; and Defendant has "`actual present monthly expenses [of] $3,758.00.'" Based on its findings of fact, the trial court awarded Plaintiff alimony in the amount of $600.00 per month for 30 months.
On appeal, this Court held that "[i]n making its decision to award a monthly amount of alimony substantially less than [Plaintiff's] needs, the trial court erroneously relied on [Defendant's] desire to purchase a new house and car." Id. at 869, 509 S.E.2d at 461. Because Defendant argued before this Court in Friend-Novorska I that the trial court erred by considering his investment income, this Court also held "the trial court was correct in considering [Defendant's] investment income." Id. at 370, 509 S.E.2d at 462. Additionally, this Court held that because the parties offered evidence regarding Defendant's alleged marital misconduct, the trial court erred by failing to make findings of fact regarding whether "the existence of the factor was or was not supported by the greater weight of the evidence." Id. Finally, this Court noted the trial court "set[ ] forth no reasons for the 30-month duration of the award." Id. This Court, therefore, held: "On remand, the trial court must make a new award of alimony and make specific findings justifying that award, both as to amount and duration. Those portions of the order declaring [Plaintiff] to be a dependent spouse and [Defendant] to be a supporting spouse are affirmed." Id. at 870-71, 509 S.E.2d at 462. Accordingly, this Court affirmed in part and vacated and remanded in part the decision of the trial court. Id. at 871, 509 S.E.2d at 462.
On remand, the trial court did not hear additional evidence regarding Plaintiff's claim for alimony. In an order filed 7 September 1999, the trial court made the following pertinent findings of fact:
H. An equitable distribution order was entered in this cause ... on July 24, 1997, from a hearing held May 28, 1997. Pursuant to the judgment of equitable distribution, ... [P]laintiff received an unequal distribution of the marital property in her favor.... [P]laintiff received assets with a date of separation net value of $92,205.83, which was 55% of the marital estate, *791 and ... [D]efendant received assets with a date of separation net value of $75,441.13, or 45% of the marital estate....
....
L.... [P]laintiff was earning an annual salary of $17,280.00 working part-time at the date of separation. At the time of trial, ... [P]laintiff worked full-time with University of North Carolina Hospital at an annual salary of $29,000.00 per year[.]... [P]laintiff has $1,745.22 per month net income available to her to meet ... monthly expenses.... This is a permanent, full-time position which provides ... [P]laintiff with health insurance at no cost, dental insurance, disability insurance and a retirement plan which requires a six percent (6%) deduction from her salary and the State of North Carolina matches her contribution at the same rate.
M.... [D]efendant has a Bachelor of Administration Degree ... which he obtained prior to the marriage[.]... [D]efendant ... earns an annual gross salary of $80,000.00. Based on [D]efendant's amended financial affidavit submitted at trial, and his own testimony, his actual present monthly expenses are $3,758. This is based on [D]efendant presently having rent of $745 per month for an apartment, and no payments to make on his present vehicle. According to [D]efendant's affidavit, his net monthly income from his employment ... is $4,077.... According to [D]efendant's 1996 Federal Income Tax return, [D]efendant has additional income of $196 per month from interest, dividends and refunds.... [D]efendant also recognized capital gains in 1996 of $12,404 due to the sale of securities.[1]
....
Q.... [P]laintiff presented into evidence a financial affidavit with regard to her necessities of utilities, food, clothing, cosmetics and shelter [as] evidence [of] a need of $2,394.00 per month excluding maintenance on the property which ... [P]laintiff testified is $350.00 per month.... [P]laintiff also submitted an amended affidavit and testified that her expenses had decreased in some respects and increased in others....
R. Based upon the testimony, the Court finds the reasonable fixed expenses of... [P]laintiff to be $1,802.00 per month. Therefore, ... [P]laintiff's total reasonable needs are $2,685.00 per month and ... [P]laintiff's shortfall for her projected needs, after applying her income, is approximately $939.78 per month.
S.... [P]laintiff was awarded an unequal distribution in her favor and is able to re-allocate her resources to meet her reasonable needs, including, but not limited to, refinancing the marital residence without depleting her separate estate.
....
V. The Court has considered the evidence presented by both parties as it relates to the factors set forth in North Carolina General Statute[ ] § 50-16.3A(b), and finds facts related to those factors as follows:
(1) The marital misconduct of either of the spouses. The Court considered the evidence presented by ... [P]laintiff relating to ... [D]efendant's friendship with several women prior to separation. Both parties had friends of the opposite sex during the course of the marriage. Neither party committed illicit sexual marital misconduct during the course of the marriage and prior to the date of separation.
(2) The relative earnings and earning capacities of the spouses. This is a mid-life second marriage for both of *792 the parties. Both of the parties had selected careers and been educated for their career plans prior to this marriage. At the time of trial, both parties were earning to their full capacity and both parties' relative earnings were based upon their educational background and employment history that each obtained prior to this marriage.
....
(8) The standard of living of the spouses established during the marriage. The parties lived beyond their means during the last four years of their marriage as a result of expenditures by the parties during the marriage of funds and assets received by ... [D]efendant from his mother's estate. The inflated standard of living established by the parties during the last four (4) years of their marriage resulted from ... [D]efendant inheriting approximately $200,000.00 from his mother's estate.
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs. Upon separation of the parties, ... [D]efendant voluntarily provided support for... [P]laintiff from July, 1995, to the entry of the post separation support to June 14, 1996, to enable her to work herself into a full-time position at the University of North Carolina at Chapel Hill, commensurate with her education and training. Additionally, ... [D]efendant voluntarily agreed to continue post separation support to ... [P]laintiff by a consent order dated June 14, 1996, thus allowing ... [P]laintiff to complete her training such that she could accept a full-time position at the University of North Carolina at Chapel Hill in order to meet her reasonable economic needs. Both parties are currently employed to their full capacity and neither needs to be re-trained in order to seek employment or to meet their reasonable economic needs.
....
(11) The property brought to the marriage by either spouse. The parties expended approximately $100,000.00 of ... [D]efendant's separate property which he received from his mother's estate during the last several years of their marriage, thus creating an inflated standard of living for the parties during that period of time.
....
(13) The relative needs of the spouses.... Both parties have the ability to meet their relative needs in order to subsist in the future. The Court recognizes that certain expenses will have to be cut and re-allocated by both parties in order to live within their means which was not the case during the last few years of the parties' marriage.
....
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. During the course of the marriage ... [P]laintiff shared all residences with ... [D]efendant and at times ... [D]efendant's son. At the time of trial, ... [P]laintiff is not sharing her residence with another person and continues to live in the same home with the same square footage and acreage as when two people occupied the residence.... [P]laintiff's current residence is greater than she needs to maintain her standard of living established during the marriage; however, ... [P]laintiff voluntarily chose to retain the house and 5.47 acres which is subject to the mortgage of approximately $139,000.00 at the date of this trial.... [P]laintiff has not sought a roommate and refuses to refinance the debt on her residence.
The trial court then concluded as a matter of law, in pertinent part:
Based upon the factors set forth in North Carolina General Statute § 50-16.3A(b), the [c]ourt concludes that a term of alimony for thirty consecutive months *793 from October, 1997 to April, 2000, in the amount of $600.00 per month is reasonable and equitable based on the findings of fact made by this Court....
Additionally, the trial court concluded that "[P]laintiff is not entitled to an award of attorney[`s] fees."
The issues are whether: (I) the trial court on remand erred by making new and/or additional findings of fact when this Court vacated the order of the trial court in Friend-Novorska I; (II) the trial court's findings of fact are sufficient to support the amount and duration of its award of alimony under N.C. Gen.Stat. § 50-16.3A(b); and (III) the trial court's findings of fact support its conclusion "[P]laintiff is not entitled to an award of attorney[`s] fees."
I
Plaintiff argues the trial court was "bound by its own findings of fact" made in its 17 October 1997 order because it took no new evidence on remand. Plaintiff, therefore, contends the trial court erred by making new and/or additional findings of fact on remand, including its finding of fact regarding the contribution needed by Plaintiff to meet her monthly expenses.
In Friend-Novorska I, this Court affirmed the decision of the trial court that Plaintiff was a dependent spouse and Defendant was a supporting spouse. Additionally, this Court held "the trial court was correct in considering [Defendant's] investment income." The remainder of the trial court's decision was vacated and remanded to the trial court for "a new award of alimony" and "specific findings justifying that award." The term "vacate" means: "To annul; to set aside; to cancel or rescind. To render an act void; as, to vacate ... a judgment." Black's Law Dictionary 1548 (6th ed.1990). Thus, the vacated portions of the 17 October 1997 order were void and of no effect. On remand, therefore, the trial court was free to reconsider the evidence before it and to enter new and/or additional findings of fact based on the evidence, with the exception that the trial court was bound on remand by any portions of the 17 October 1997 order affirmed by this Court in Friend-Novorska I. Accordingly, the trial court on remand was bound by its previous finding of fact regarding Defendant's investment income and by its previous conclusion that Defendant was a supporting spouse and Plaintiff was a dependent spouse. On remand, the trial court did not make new and/or additional findings regarding Defendant's investment income[2] or regarding its conclusion Defendant was a supporting spouse and Plaintiff was a dependent spouse. In regard to the remaining portions of its 7 September 1999 order, the trial court did not err by making new and/or additional findings of fact, including its finding of fact regarding the contribution needed by Plaintiff to meet her monthly expenses.
II
Plaintiff argues the trial court's findings of fact do not support the amount and duration of its alimony award. We disagree.
N.C. Gen.Stat. § 50-16.3A, which governs actions for alimony, states, in pertinent part: "The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony." N.C.G.S. § 50-16.3A(b) (1999). In determining the amount, duration, and manner of payment of alimony, the trial court must consider the sixteen factors set forth in section 50-16.3A(b) and "make a specific finding of fact on each of the factors in subsection (b) ... if evidence is offered on that factor." N.C.G.S. §§ 50-16.3A(b), 50-16.3A(c) (1999). Additionally, section 50-16.3A(c) provides: "The court shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment." N.C.G.S. § 50-16.3A(c). *794 The issue of what constitutes sufficient "reasons for" the amount, duration, and manner of payment of an alimony award has previously not been addressed by this Court. However, because the statutory scheme provided in section 50-16.3A is similar to N.C. Gen.Stat. § 50-20 (equitable distribution of marital and divisible property), the findings of fact required to support an equitable distribution award under section 50-20 provide guidance as to the findings of fact required to support an alimony award under section 50-16.3A.
N.C. Gen.Stat. § 50-20(c) provides twelve factors the trial court must consider when determining the equitable distribution of marital and divisible property. N.C.G.S. § 50-20(c) (1999). As with section 50-16.3A, the trial court must make findings of fact under section 50-20 regarding any of the factors for which evidence is introduced at trial. Armstrong v. Armstrong, 322 N.C. 396, 406, 368 S.E.2d 595, 600 (1988). Section 50-20 further provides: "In any order for the distribution of property made pursuant to [N.C. Gen.Stat. § 50-20], the court shall make written findings of fact that support the determination that the marital property and divisible property has been equitably divided." N.C.G.S. § 50-20(j) (1999). Findings of fact are sufficient to "support the determination" an equitable division has been made when findings of fact have been made on the ultimate facts at issue in the case, and the findings of fact show the trial court properly applied the law in the case. Armstrong, 322 N.C. at 405-06, 368 S.E.2d at 600; Atkinson v. Chandler, 130 N.C.App. 561, 566, 504 S.E.2d 94, 97 (1998). The weight given each factor, however, is within the discretion of the trial court, and the trial court is not required to specifically state the weight given each factor to "support the determination" an equitable distribution has been made. White v. White, 312 N.C. 770, 777-78, 324 S.E.2d 829, 833 (1985). Additionally, the weight given each factor by the trial court must be upheld on appeal absent a showing of abuse of discretion. Id. at 777, 324 S.E.2d at 833 ("trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason"). Thus, because the discretionary powers granted to the trial court in equitable distribution actions is similar to the discretion granted to the trial court in alimony actions, see id. (comparing "wide discretionary powers" granted to the trial court in equitable distribution actions, alimony actions, and child support and custody actions), we hold the findings of fact required to support the amount, duration, and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case[3] and the findings of fact show the trial court properly applied the law in the case. The findings of fact need not set forth the weight given to the factors in section 50-16.3A(b) by the trial court when determining the appropriate amount, duration, and manner of payment, as the weight given the factors is within the sound discretion of the trial court.
In this case, the trial court made extensive findings of fact regarding the parties' incomes and expenses. The trial court found as fact that Plaintiff's "shortfall for her projected needs ... is approximately $939.78 per month." In awarding Plaintiff an alimony award of $600.00 per month for 30 months, the trial court considered: Plaintiff received an unequal distribution of the marital property in her favor; Plaintiff is able to "re-allocate her resources to meet her reasonable needs ... without depleting her separate estate"; both of the parties "had selected careers and been educated for their career plans prior to this marriage"; the parties lived beyond their means during the last four years of their marriage; subsequent to the parties' separation, Defendant provided support to Plaintiff which enabled Plaintiff to obtain a full-time position at the University of North Carolina at Chapel Hill and to "complete her training ... in order to meet her reasonable economic needs"; and "certain expenses will have to be cut and re-allocated by both parties in order to live within their means which was not the case *795 during the last few years of the parties' marriage." The record shows the trial court made findings of fact on all of the section 50-16.3A(b) factors for which evidence was presented, and there is no indication in the record that the trial court misapplied the law when making findings on these factors. Additionally, the record does not show the trial court abused its discretion when assigning weight to the section 50-16.3A(b) factors in this case. Accordingly, we must affirm the amount, duration, and manner of payment of the trial court's 7 September 1999 award of alimony.
III
Plaintiff argues the trial court erred by failing to award her attorney's fees under N.C. Gen.Stat. § 50-16.4.
Section 50-16.4 provides, in pertinent part: "At any time that a dependent spouse would be entitled to alimony pursuant to G.S.50-16.3A, ... the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony." N.C.G.S. § 50-16.4 (1999). "Before granting an award of attorney[`]s[ ] fees, the trial court must determine, as a mater of law, that the spouse seeking the award is dependent, and that the spouse is without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses." Owensby v. Owensby, 312 N.C. 473, 475, 322 S.E.2d 772, 773-74 (1984). When an award of attorney's fees is properly awarded, the amount of the award is within the discretion of the trial court. Id. at 475, 322 S.E.2d at 774.
In this case, the trial court concluded Plaintiff is a dependent spouse. The trial court did not, however, make any findings regarding whether Plaintiff "is without sufficient means to subsist during the prosecution of the suit and to defray the necessary expenses." The trial court's conclusion of law that "[P]laintiff is not entitled to an award of attorney[`s] fees" is, therefore, not supported by its findings. Accordingly, the portion of the trial court's 7 September 1999 order denying Plaintiff attorney's fees is reversed, and this case is remanded to the trial court for findings on whether Plaintiff is entitled to an award of attorney's fees. The remaining portions of the trial court's 7 September 1999 order are affirmed. We reject the additional arguments asserted by Plaintiff in her brief to this Court.
Affirmed in part and reversed in part.
Judge McCULLOUGH concurs.
Judge HUDSON dissents.
HUDSON, Judge, dissenting.
I do not believe the majority opinion fully addresses a number of crucial issues in this case. These issues are: (I) precisely which portions of the trial court's original order were vacated, and which portions were left standing, by this Court in Friend-Novorska v. Novorska, 131 N.C.App. 867, 509 S.E.2d 460 (1998) (Friend-Novorska I); (II) the trial court's failure to make a new award of alimony on remand; and (III) the trial court's renewed failure to explain both the amount of alimony and the duration of the award on remand. For these reasons, I must dissent.
The trial court's original order, from which plaintiff appealed in Friend-Novorska I, contained only two conclusions of law:
1. Plaintiff is, and was during the marriage and at date of separation, the dependent spouse.... Defendant is and was the supporting spouse at these times....
2.... Defendant should pay alimony to Plaintiff of $600 per month for a term of thirty consecutive months.
On appeal from this order in Friend-Novorska I, plaintiff set forth only one assignment of error: "The Order and Judgment for Alimony ordering Defendant to pay Plaintiff $600 per month for thirty consecutive months as being contrary to law and unsupported by evidence, findings of fact and conclusions of law." In her brief, plaintiff argued as a subsidiary issue that the trial court erred by failing to make adequate findings with regard to marital misconduct. Likewise, defendant, in his brief to this Court, argued only one cross-assignment of error: the trial court's award of any alimony to plaintiff. *796 Defendant argued as a subsidiary issue that the trial court erred in considering his investment income in determining his monthly income. Neither party, on appeal in Friend-Novorska I, assigned error to any other finding or conclusion in the trial court's first order.
In response to these two assignments of error, we affirmed (1) the trial court's first conclusion of law (that plaintiff was a dependent spouse and that defendant was a supporting spouse), and (2) the trial court's consideration of defendant's investment income in calculating defendant's net monthly income. However, we further held that the trial court had erred in three specific ways. First, we held that the trial court had erred in considering defendant's desire to purchase a new house and car "[i]n making its decision to award [to plaintiff] a monthly amount of alimony substantially less than her needs." Id. at 869, 509 S.E.2d at 461. We explained that the trial court had abused its discretion in allowing "a supporting spouse to reduce his net monthly income, and thus his obligation to his dependent spouse, based not on necessity, but instead on his expressed `desires' for a new house and automobile." Id. Second, we held that the trial court had erred in not making findings regarding the marital misconduct of the parties since the parties had offered evidence on that issue. Third, we held that the trial court had erred in not making findings justifying either the amount or the duration of the award of alimony. In regard to this third error, we specifically cited Payne v. Payne, 49 N.C.App. 132, 137, 270 S.E.2d 546, 549 (1980), for the proposition that "[o]vershadowing the entire matter is the inescapable fact that [when the alimony payments cease,] plaintiff's right to `permanent alimony' will terminate, along with any semblance of her accustomed standard of living." Friend-Novorska, 131 N.C.App. at 870, 509 S.E.2d at 462.
After our discussion of these three specific errors on the part of the trial court, we stated:
On remand, the trial court must make a new award of alimony and make specific findings justifying that award, both as to amount and duration. Those portions of the order declaring [plaintiff] to be a dependent spouse and [defendant] to be a supporting spouse are affirmed. For the foregoing reasons, the decision of the trial court is Affirmed in part, and vacated and remanded in part.
Id. at 870-71, 509 S.E.2d at 462. Reading this language in context, I believe we vacated only the trial court's second conclusion of law awarding plaintiff $600.00 per month for thirty months. I further believe we remanded only for (1) a new award of alimony calculated without considering defendant's desire for a new house and car, (2) additional specific findings to justify the amount and duration of that award, and (3) additional findings as to marital misconduct. The majority states that aside from the two issues which we expressly affirmed (the conclusion that plaintiff was a dependent spouse and the consideration of defendant's investment income in calculating his monthly income), "the remainder of the trial court's decision was vacated." I disagree.
Plaintiff's single assignment of error from the trial court's original order in Friend-Novorska I contended only that the trial court's second conclusion of law, awarding plaintiff $600.00 per month for thirty months, was "contrary to law and unsupported by evidence, findings of fact and conclusions of law." Plaintiff did not assign error to any of the findings of fact in the trial court's original order. Likewise, although defendant on appeal in Friend-Novorska I initially assigned error to a few factual findings in the trial court's original order, these assignments of error were abandoned by defendant on appeal to this Court because in his brief in Friend-Novorska I he argued only one assignment of error, namely that the trial court erred in its legal conclusion that defendant should pay alimony to plaintiff. See N.C.R.App. P. 28(a). Where no error is assigned to findings of fact, such findings of fact "are presumed to be supported by competent evidence and are binding on appeal." Anderson Chevrolet/Olds v. Higgins, 57 N.C.App. 650, 653, 292 S.E.2d 159, 161 (1982). Because none of the findings of fact from the trial court's original order were challenged on appeal to this Court in Friend-Novorska I, and because we did not *797 hold in that case that any of the findings were unsupported by the evidence, I believe all of the findings of fact, rather than being vacated by our opinion in Friend-Novorska I, as the majority contends, remained intact.
In Lea Co. v. N.C. Board of Transportation, 323 N.C. 697, 374 S.E.2d 866 (1989), our Supreme Court stated:
A decision of this Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal. Transportation, Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974). "[O]ur mandate is binding upon [the trial court] and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered." D & W, Inc. v. Charlotte, 268 N.C. 720, 722, 152 S.E.2d 199, 202 (1966). "We have held judgments of Superior [C]ourt which were inconsistent and at variance with, contrary to, and modified, corrected, altered or reversed prior mandates of the Supreme Court ... to be unauthorized and void." Collins v. Simms, 257 N.C. 1, 8, 125 S.E.2d 298, 303 (1962).
Id. at 699, 374 S.E.2d at 868. Here, despite the absence of any instructions from this Court to the trial court in Friend-Novorska I to delete, modify or supplant the findings of fact from its original order, the trial court on remand reconsidered the very same evidence and entered findings of fact which are contrary to those in its original order (which new findings of fact resulted in a greatly reduced calculation of plaintiff's reasonable monthly expenses). I believe the trial court was without authority to take this action, and I would reverse and remand with instructions that the trial court may only supplement the findings of fact from its original order in strict accordance with the directive of this Court in Friend-Novorska I.
I further believe the trial court erred in awarding plaintiff precisely the same alimony as in its original order, rather than making a new award of alimony as it was instructed to do on remand. In Friend-Novorska I, we held that the trial court had abused its discretion in awarding plaintiff alimony in the sum of $600.00 per month for 30 months. We reached this determination based on the following facts set forth in the trial court's first order: (1) plaintiff had an available net income of $1,745.22 per month from employment, while her reasonable monthly expenses were $3,089.00, resulting in plaintiff needing $1,343.78 per month to meet her monthly living expenses; (2) defendant had approximately $4,887.00 per month (including net income from salary and investments) with expenses of only $3,758.00 per month, giving him over $1,000 more than necessary to meet his monthly living expenses; and (3) an alimony award of $600 per month would provide defendant with about $210.00 per month in tax benefits, and would provide plaintiff a net of only $520.00 per month after taxes. In other words, the award of $600 per month would have left plaintiff with $823.78 less than her reasonable monthly expenses of $3,089, while providing defendant with approximately $761 more than his reasonable monthly expenses of $3,758. Thus, we held that the trial court had abused its discretion in awarding plaintiff "substantially less than her needs," Friend-Novorska, 131 N.C.App. at 869, 509 S.E.2d at 461, and ordered the trial court on remand to "make a new award of alimony," id. at 871, 509 S.E.2d at 462.
The trial court, however, did not make a new award of alimony. Instead, the trial court made the same award of $600 per month for the same duration of 30 months. Furthermore, the only calculation that has changed in the trial court's second order as compared to its original order is the calculation of plaintiff's reasonable monthly expenses (based on the very same evidence, the trial court inexplicably reduced plaintiff's reasonable monthly car expenses from $307 to $150, and reduced plaintiff's reasonable monthly expenses for home maintenance from $350 to $100). According to these new calculations, an award of $600 per month would still leave defendant with $761 more than his reasonable monthly expenses of $3,758, while still leaving plaintiff with $419.78 less than her recalculated reasonable monthly expenses of $2,685. As in Payne, where the trial court's alimony award would have provided plaintiff with $138 less per *798 month than her reasonable monthly living expenses but would have provided defendant with $739 more per month than his reasonable monthly living expenses, "the order challenged by this appeal effectively destroys plaintiff's `accustomed standard of living' while substantially improving defendant's." Payne, 49 N.C.App. at 137, 270 S.E.2d at 549. I believe the trial court's alimony award of $600 per month in its second order directly contradicts our instructions on remand and constitutes reversible error.
Finally, in Friend-Novorska I, we not only ordered the trial court on remand to make a new award of alimony, but also to "make specific findings justifying that award, both as to amount and duration." Id. The trial court's second order states:
The Court concludes that a term of alimony for thirty consecutive months from October, 1997 to April, 2000, in the amount of $600.00 per month is reasonable and equitable based on the findings of fact made by this Court in paragraph 4, and its subsections, of the findings of fact.
"Paragraph 4" comprises 14 pages of the order (the entire order is 15 pages), and "its subsections" include paragraphs A through V, and, under paragraph V, sub-paragraphs 1 through 15. I believe this broad reference to virtually every finding in the order as a basis for concluding that the amount and duration of the alimony award is reasonable is insufficiently specific to satisfy our explicit instructions in Friend-Novorska I.
In sum, I believe the trial court's second order follows neither the explicit instructions, nor the spirit, of this Court's opinion in Friend-Novorska I. I believe the findings of fact in the original order were not vacated by our opinion in Friend-Novorska I and that the trial court was without authority to modify or supplant those findings. I also believe the trial court's failure to make a new award of alimony, and the trial court's failure to make additional findings justifying the amount and duration of the award, constitute reversible error. Therefore, I must dissent.
NOTES
[1] In its 17 October 1997 order, the trial court found as fact that Defendant had income from "interest, dividends, refunds, and capital gains" of $14,968.00 per year.
[2] In its 17 October 1997 order, the trial court attributed to Defendant $14,968.00 gross income per year from dividends, interest, capital gains, and tax refunds. In its 7 September 1999 order, the trial court attributed to Defendant $14,756.00 gross income per year from these same sources. As the amounts of additional income are not materially different, we affirm the trial court's findings in its 7 September 1999 order regarding Defendant's income from dividends, interest, capital gains, and tax refunds.
[3] The ultimate facts at issue in the case are facts relating to the factors set forth in section 50-16.3A(b) for which evidence is presented at trial.
|
228 Cal.App.3d 1146 (1991)
279 Cal. Rptr. 437
THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT EDGAR WEBBER, Defendant and Appellant.
Docket No. B046298.
Court of Appeals of California, Second District, Division Seven.
March 26, 1991.
*1151 COUNSEL
David Harrell and Maureen DeMaio, under appointments by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, Linda C. Johnson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS (Fred), J.
Defendant, who was convicted of second degree murder and false imprisonment, contends that the court made numerous erroneous rulings relating to the rejection of requested instructions, the use of prior arrest reports, and various sentencing errors. Since we conclude that the court improperly refused to give an involuntary manslaughter instruction, we reverse the murder conviction and affirm the false imprisonment conviction.
FACTUAL AND PROCEDURAL SYNOPSIS
1. Procedural history
In an information filed on March 20, 1989, appellant was charged in count I with murder in violation of Penal Code section[1] 187, subdivision (a). It was further alleged that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(1) and that appellant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) *1152 and 12022.5, which also caused the offense to become a serious felony pursuant to section 1192.7, subdivision (c)(8). Appellant was charged in count II with kidnapping in violation of section 207, subdivision (a). It was further alleged that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(20) and that appellant personally used a firearm within the meaning of section 1203.06, subdivision (a)(1) and 12022.5, which also caused the offense to become a serious felony within the meaning of section 1192.7, subdivision (c)(8).
A jury found appellant guilty as charged in count I and found the murder to be of the second degree. The jury also found the allegation that appellant personally used a firearm to be true. On count II, the jury found appellant guilty of the lesser included offense of false imprisonment by force, menace or duress in violation of section 236. The jury also found to be true the allegation that appellant personally used a firearm.
Appellant was sentenced to 15 years to life on count I, plus 2 years consecutively on the section 12022.5 enhancement. Imposed consecutively on count II was the upper term of three years, plus two years on the section 12022.5 enhancement. The abstract of judgment states that the sentence on count II is consecutive to the sentence on count I.
Appellant's motion for a new trial was denied, and appellant filed a timely notice of appeal.
We granted respondent's petition for rehearing.
2. Factual history
A. Prosecution case
Franklin Bass, who was in the Navy and stationed in Long Beach, shared an apartment with Dawn Reeves when he was not on board ship. On the evening of January 14, 1989, Franklin, Dawn and Tim Clark attended a birthday party for the children of Dawn's friends and returned to their Ontario apartment at 11 p.m. Later that evening, Skip Reeves (Dawn's brother) and appellant stopped by to visit.
Bass knew Skip, but had never met appellant before. When Skip and appellant entered the apartment, the others were watching television and talking. Bass had just gotten a beer from the refrigerator. Skip introduced appellant. All five participated in a general conversation. Appellant sat in the corner, but did not do anything unusual. When Bass asked appellant if *1153 he wanted a drink, appellant said he did not want alcohol because it tasted like shit.
After an hour or so, Bass became tired and went to sleep on the bed in the studio apartment. Everyone was acting calmly. Bass had consumed three beers and a portion of another beer during the course of the evening.
Bass woke up because he heard Dawn screaming from the bathroom. She said: "`Frank, what's going on out there?'" She was yelling at Tim and appellant to find out what was going on.
Bass rose up and saw appellant on top of Tim, who was laying on the other bed. Appellant had his left hand around Tim's throat and a .38-caliber revolver to Tim's head. Appellant was threatening Tim. Bass was about four feet away from Tim and appellant. During the scuffle, appellant told Tim that he would come back for Tim. Appellant said: "`There's bats, knives, guns; your choice, but I'm coming to get you.'"
Bass raised his hands up, trying to avoid any threatening gestures, and walked toward appellant. Appellant pulled the gun away from Tim's head and told Tim to keep his mouth shut.
Dawn came out and began yelling at Tim. Tim became angry and began yelling at appellant. Tim told Dawn that appellant had threatened him with a gun and had threatened to kill him. Dawn did not seem to believe Tim.
Appellant was sitting on the couch, glaring at Tim and making gestures as if to say "come on." The gun was in appellant's jacket at this time.
Tim wanted to confront appellant, but Dawn insisted on trying to find out what had happened. Dawn pushed Tim to the kitchen while appellant stared at Tim. Bass went towards appellant, trying to keep appellant away, making sure appellant did not reach into his pocket again. Dawn asked Bass to get appellant out of there because Tim was mad.
Bass told appellant to leave. Appellant stood up, and Bass stood between Dawn and appellant. Bass used his raised hands and chest. Bass said, "`I am not armed. I am not trying anything but you have to leave.'" When the two men went outside, Bass locked and shut the door behind him. Bass then thought, "`Wow, you're outside now. This man has a gun. What are you going to do?'"
Bass turned around and saw that appellant was pointing the gun directly at him. Bass raised his hands and said, "`I've got my car keys. I'll take you *1154 any where [sic] you want to go, but I can't let you come back into the apartment.'" Appellant pointed the gun at Bass, and Bass heard the distinct clicking sound of the hammer going back. Appellant ordered Bass to drive, and the two walked to the car. Appellant was behind Bass, pulling the hammer back and then releasing it, causing a clicking sound.
Appellant spoke of going back to the apartment, and Bass told appellant that appellant could not do so. Bass, who was scared, kept thinking, "`What am I doing. I've got to get out of this. That gun could go off while he's doing that.'" Bass unlocked the passenger's and driver's doors. Bass got in the driver's seat, and appellant got in the passenger seat.
As Bass drove, appellant told Bass to turn left or right, which Bass did. Appellant ordered Bass to run red lights at different times, and ordered Bass to drive faster at other times. During this time, appellant was pointing the gun at Bass.
Bass noticed the gun was being held across appellant's chest and appellant was rocking back and forth. Bass was busy driving his car, which had a manual transmission. Appellant was making remarks about capping off a few rounds and shooting somebody.
As Bass was driving, he saw that two sheriff's cars had pulled someone over on the right shoulder of Mission Boulevard. Bass decided to drive up behind the sheriff's vehicles, get out of the car, raise his hands and tell the deputies that appellant had a gun. Bass began to slow up and move from the left hand lane to the right hand lane, when appellant said, "`Good idea. I am going to get some pigs. I am going to cap off a few rounds.'" With that, appellant stuck the gun out of the passenger side window.
Bass speeded up and moved the car away from the cops; Bass speeded up to 90 from 60 miles per hours in a 45-mile zone. Appellant screamed, "`You made me miss'" and cussed at Bass.
As they entered Pomona, westbound on Mission, Bass saw a black Mustang traveling in the same direction. The Mustang was in the lane nearest the curb, while Bass was in the lane nearer the center. The driver of the Mustang was looking straight ahead and had his hands on the wheel. There was no contact between the two cars.
Both cars stopped at a light. Bass got away from the light first, but appellant told Bass to slow down. Appellant kept telling Bass to slow down, then to speed up, always staying a little ahead or behind the black Mustang. Appellant said, "`Look, they got a shotgun. They're going to shoot at us.'" *1155 Bass looked over to see the driver of the black Mustang just driving with his hands on his wheel and looking straight ahead. Bass did not see a shotgun. The driver's window of the Mustang was rolled up.
Appellant kept saying that they would shoot us, that they're from out of town. Appellant said, "`You're going to see what happens when people been a Dick to me.'" Appellant pulled the gun in and out of the window and then stuck it out the window. Bass heard shots and broken glass. Bass counted five rapid shots; appellant's gun held six bullets. Bass saw that the black Mustang was half a car length ahead and appellant's arm was out of the window with the gun pointed at the Mustang.
Bass never saw a window rolled down on the black Mustang or any kind of weapon in that car. Bass never saw the driver of the Mustang looking in their direction or witnessed any contact whatsoever with the Mustang.
Officer Thomas C. Marchetti of the Los Angeles Police Department had been heading home with his friend Dean Zacharis in a black Mustang on Mission. Zacharis was driving the Mustang, and Marchetti was the passenger. Marchetti heard gunfire, and the driver's side window of the Mustang came crashing in and hit Marchetti in the face. Marchetti went down, and when he came up, he saw Dean's head lying in his direction. Marchetti saw blood coming from the left side of Dean's head and thought Dean had been shot in the head. The car was still traveling in a straight direction when Dean's hands went down. The Mustang's windows were tinted black. Marchetti said that they had had no experiences or contacts of a negative nature with anyone else on the road.
Marchetti did not see from where the shots were fired. He grabbed the wheel and stepped on the gas to get out of the killing zone. Marchetti stopped at a doughnut shop and summoned the police.
As soon as Bass heard the shots, he speeded up. When Bass looked over, he saw the Mustang continue moving straight ahead. Bass made a left turn. Bass made a second left turn on appellant's order. Bass saw appellant reload the gun and toss the shells out of the window.
Appellant said he had $4,000 on his person with which to bribe witnesses. Bass drove straight ahead except when he was ordered by appellant to make right or left turns.
At one point, appellant reached over and jerked the steering wheel with his left hand. Bass said, "`You know, you could kill us.'" Appellant said, *1156 "`We got to take care of the vehicle. We've got to get rid of it,'" and "`I'll buy you a new one, whatever you want.'"
Appellant directed Bass to park in front of a closed restaurant next door to a convenience store. Appellant told Bass to walk into the store while appellant walked 10 feet behind, clicking the hammer on the gun. Appellant demanded some money from Bass and bought a candy bar.
Appellant pointed the gun at a dumpster and spoke of shooting off the gun or going to get somebody. Bass told appellant not to do that because a bullet might ricochet back.
Bass went back and got in the car. Appellant remained outside, and after seeing appellant walk around to the back of the building, Bass drove to the street. Bass then saw appellant, who had come around the building. Appellant pointed a gun at Bass and said, "`You are lucky you weren't being a Dick to me.'" Bass said that he was not, and appellant got into the car and was holding the gun across his lap. Appellant rambled on about getting rid of the witnesses and getting rid of the car.
Appellant gave a few more directions then got out of the car after acting as if he had thrown something under the seat. Appellant still held the gun and closed the door. Bass drove over to a 7-Eleven and called 911. Bass told the dispatcher in which direction appellant was headed. When the police arrived, Bass told them what had happened that night.
Bass had not wanted to be in the car with appellant that evening, but he was scared because of appellant's gun. Bass did not know what to do because he could not just push someone with a gun out of the car. Bass did not see appellant consume any drugs or alcohol that evening. Bass was familiar with the effects of amphetamines or methamphetamine on individuals because he knew people who used those drugs. Bass testified that appellant did not appear to have symptoms of such use, but rather appeared to be in complete control.
During the early morning hours of January 15, 1989, John E. Jones of the Ontario Police Department received a radio call regarding a man with a gun who was suspected of firing into a car. Jones was given a description of the suspect, his location and direction of travel.
Jones saw appellant, standing with his arms closed with both of his hands up tightly to his armpits. Jones could not tell if appellant held something in his hands.
*1157 After Jones turned his vehicle around, he saw appellant standing still with his back to Jones, but in a different spot. After leaving the police vehicle, Jones asked appellant to turn around and unfold his hands and put them on the hood of the patrol car. Jones saw the back strap and wooden handle of a gun coming out from appellant's armpit. Jones saw the hammer of the gun coming out and the barrel of the gun beginning to come towards his direction.
Jones fired one shot at appellant and struck appellant with the bullet. Appellant's only statement was, "`I didn't shoot anybody. I didn't shoot anybody.'"
B. Defense case
Appellant's defense was manslaughter and imperfect self-defense based on voluntary intoxication which had caused appellant's deteriorating mental condition and impaired his ability to think.
During trial, the court limited defense testimony regarding the development of appellant's paranoia and mental depression months before the shooting. Defense counsel made an offer of proof that lay testimony about appellant's depression and drug intoxication would be the basis for expert medical testimony regarding appellant's mental state and mental disorder at the time of the shooting. Thereafter, the court modified its order and allowed appellant to present testimony about appellant's drug use and mental disorder.
David Streety testified that he and appellant had known each other since high school. Appellant had started working at Streety's garage four to five months prior to the shooting. In late 1988, appellant began taking speed on a daily basis, became progressively paranoid and claimed people were following him in cars. Appellant's drug use got out of control about the same time as appellant purchased a gun.
Appellant's mother testified that appellant was hyperactive in grammar school and received ritalin medication until age 15. She was forced to get a restraining order in October 1988, when appellant started using excessive amounts of drugs and acting violent. Appellant's drug use became much more pronounced after his girlfriend left him and took their baby.
Officer Alfredo Parra testified that on September 26, 1988, he was called to assist appellant who was found screaming, shouting, and shaking on a public sidewalk. Appellant claimed that electricity was shooting up from *1158 the ground and shocking him. Appellant was taken to the Ontario Community Hospital.
Dr. Greg Maddex testified that he examined appellant at the hospital emergency room after appellant was subdued with police taser darts. Appellant was combative, talking in fragmented sentences, and writhing about the table. Appellant had no grasp of reality; his urine tested positive for amphetamines. Appellant was transferred to San Bernardino County Hospital for a psychiatric evaluation pursuant to Welfare and Institutions Code section 5150.
Rochelle Garant testified that she had known appellant for 10 years. Appellant's girlfriend taking their baby caused him to become depressed, and appellant started using speed and cocaine on a regular basis. As a result of his drug consumption, appellant became paranoid and thought people were following him. During January 1989, appellant smoked and snorted excessive amounts of speed and was not sleeping or eating.
Clifford Delasantos testified that he had known appellant for 10 years. On the evening of January 14, 1989, appellant consumed half a gram of methamphetamine and was acting paranoid just before leaving Delasantos's residence.
Richard (Skip) Reeves testified that he met appellant at his grandmother's house on January 14, 1989. They stayed until 11 p.m. and consumed methamphetamine. Appellant and Reeves decided to go see Richard's sister, Dawn Reeves. On the ride over, appellant smoked a quarter gram of methamphetamine. Appellant was paranoid and "wigged out" (i.e., not in a right state of mind) at Dawn's apartment.
Timothy Clark testified that on the night of January 14th, appellant was fidgeting around in the apartment, that it was apparent something was wrong with appellant and that appellant was acting crazy and like a lunatic.
Dawn Reeves testified that appellant was very quiet and kept to himself at the apartment on the night in question and that appellant was walking very paranoid, i.e, he kept walking to the window, looking out, sitting back down and then getting up and looking out the window again.
Dr. Ronald E. Siegel testified that he is a psychopharmacologist who researches the effects of drugs on humans. According to Dr. Siegel, a person who takes amphetamine for a long period of time progresses through four distinct stages. The third stage is paranoia, which progresses into psychosis *1159 in the fourth stage. Paranoid hallucinations and delusions are present in the fourth stage.
Dr. Siegel reviewed appellant's case. Siegel reviewed the police reports, public defender's investigation report, preliminary hearing transcript, some of appellant's records from Ontario Hospital, the toxicology report and the autopsy report. Siegel interviewed appellant and took a detailed history of the drugs used by appellant and how the drugs affected appellant's perceptions.
Ms. Linda Wong, the forensic toxicologist who analyzed the blood samples taken from appellant following his arrest, testified that his blood tested positive for methamphetamine (320 nanograms per milliliter) and amphetamine (68 nanograms per milliliter). Dr. Siegel testified that those blood levels constituted a high concentration of methamphetamine about 10 to 15 times the amount normally used for therapeutic purposes.
Dr. Siegel recounted an interview with appellant in which appellant gave a confused account of the night of the shooting. Appellant told Dr. Siegel that he believed that the driver of the other car was his father-in-law and wearing a cowboy hat and that he had fired the revolver based on a belief that he and Bass were about to be the victims of a drive-by shooting. Siegel was of the opinion that appellant was intoxicated with methamphetamine on the night of the shooting, experienced a paranoid psychotic episode and was hallucinating at the time of the shooting.
CONTENTIONS
1. The court failed to fully instruct the jury on defense issues of intoxication, imperfect self-defense and nonstatutory manslaughter.
2. Defense evidence presented during the trial regarding appellant's drug intoxication and psychotic paranoia required the court to instruct on involuntary manslaughter.
3. The court committed prejudicial error when it failed to instruct on involuntary manslaughter as a necessarily included offense to murder.
4. The court erred as a matter of law when it rejected defense instructions regarding voluntary intoxication and unconsciousness.
5. The court committed prejudicial error when it instructed the jury that voluntary manslaughter is a general intent crime for which appellant's voluntary intoxication was not a defense.
*1160 6. The prosecution's failure to disclose and produce appellant's prior arrest reports before trial and prior to sentencing violated appellant's due process right to a fair trial.
7. No California Rules of Court, rule[2] 421 aggravating factors existed to warrant imposition of an upper three-year term on the false imprisonment conviction.
8. The court violated In re Culbreth (1976) 17 Cal.3d 330 [130 Cal. Rptr. 719, 551 P.2d 23] when it used a section 12022.5 firearm enhancement in a dual fashion to first impose an upper term on the false imprisonment sentence and then to impose two separate two-year consecutive sentences.
9. The court committed error pursuant to sections 654 and 669 when it ordered the false imprisonment and second degree murder sentences to run consecutive to one another.
10. The abstract of judgment incorrectly orders appellant's determinate sentence to run consecutive to the indeterminate sentence for second degree murder.
DISCUSSION
I. The Court Improperly Failed to Instruct on Involuntary Manslaughter
In the instant case, appellant was convicted of second degree murder based on a drive-by shooting into another vehicle. The defense theory of the case was that appellant committed the offense in self-defense based upon an unreasonable belief that he was going to be the victim of a drive-by shooting and that appellant's belief resulted from his drug intoxication leading to a paranoid hallucination. The jury was instructed on first and second degree murder and voluntary manslaughter as well as mental disease or defect, voluntary intoxication and unreasonable self-defense. The court rejected defense's proferred involuntary manslaughter instruction, CALJIC No. 8.47 (1979 rev.).
This case is closely analogous to People v. Ray (1975) 14 Cal.3d 20 [120 Cal. Rptr. 377, 533 P.2d 1017], a case in which the Supreme Court reversed a voluntary manslaughter conviction because the trial court had failed to instruct on involuntary manslaughter. In Ray, the jury had been instructed *1161 on first and second degree murder and voluntary manslaughter and diminished capacity as it related to those crimes. (Id., at p. 27.)
The court observed that the general principles relative to the duty to instruct sua sponte were "an obligation to instruct on [a defense] but only when it appears that the defendant is relying on that defense, `or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (14 Cal.3d at p. 25.)
In Ray, the court observed that there was no factual support for the defense of involuntary unconsciousness in the record, the defendant had raised the defense for the first time on appeal and the instruction was inconsistent with the complete defense asserted at trial that the defendant killed only in self-defense. (14 Cal.3d at pp. 25, 27.)
But then, the court noted that the trial court's failure to instruct on involuntary manslaughter was due to a misunderstanding that a state of unconsciousness was necessary to a finding of involuntary manslaughter in the context of diminished capacity based on intoxication. (14 Cal.3d at p. 28.) The court reasoned that: "Notwithstanding the absence of substantial evidence to support defendant's claim of unconsciousness, the refusal of the trial court to instruct on involuntary manslaughter in the context of diminished capacity eliminated an opportunity for defendant to have been found guilty of a crime not more serious than involuntary manslaughter." (Id., at p. 27.)
The court noted that: "The unlawful killing of a human being with malice aforethought is murder. (§ 187, subd. (a).) If because of diminished capacity the perpetrator is unable to entertain malice but nevertheless is found to be able to form the intent to kill the crime is voluntary manslaughter. If because of his diminished capacity he additionally did not intend to kill, his crime, if any, is involuntary manslaughter. [Citation] ... `Once facts are adduced which would constitute a basis for finding that defendant had both diminished capacity ..., and also unconsciousness or lack of the intent to kill, the trial court fails in its duty to instruct the jury as to all issues of law raised by the evidence ... if it does not supplement the statutory definition of involuntary manslaughter. It must also instruct that if, due to diminished capacity the defendant had neither malice nor intent to kill, the offense could be no greater than involuntary manslaughter.'" (Italics deleted.) (14 Cal.3d at p. 28.)
The court held that it was "clear that an instruction on involuntary manslaughter is required if there is evidence that the accused is unable to entertain an intent to kill even though he has not lapsed into unconsciousness." *1162 (Italics added.) (14 Cal.3d at pp. 28-29.) The court concluded that although the trial court was correct in refusing the instruction based on unconsciousness, the court was required, sua sponte, to give proper instructions[3] on involuntary manslaughter in the context of diminished capacity due to defendant's voluntary intoxication because the weight of the evidence of defendant's intoxication was sufficient for a jury to have believed that although he was conscious, he lacked both malice and an intent to kill. (Id., at p. 31.)
(1a) In a supplemental brief and in the petition for rehearing, respondent implies that Ray should not form the basis for the ruling in the instant case because diminished capacity is no longer viable law in California to the extent that it was at the time Ray was decided. Although diminished capacity is no longer a complete defense, pursuant to section 22, subdivision (b), rebuttal evidence must still be considered by the trier of fact in determining whether a defendant actually formed malice or the intent to kill. (People v. Molina (1988) 202 Cal. App.3d 1168, 1172-1174 [249 Cal. Rptr. 273].) "[W]hether the defendant had or did not have the required mental states shall be decided by the trier of fact." (§ 29.)
Accordingly, Ray is still good law in its holding that where there is substantial evidence that a defendant was unable to entertain, i.e., did not actually form, an intent to kill, the court has a sua sponte duty to instruct on involuntary manslaughter.
The question then becomes what type of evidence constitutes substantial evidence that a defendant did not actually form an intent to kill. Respondent argues that there is no evidence that appellant's hallucinations played a part in his mental state at the time of the shooting and that appellant's defense is factually inconsistent with a claim that appellant was unable to form an intent to kill. We disagree.
Under Ray, there has to be evidence of two factors a sort of cause and effect relationship between intoxication and lack of intent to kill. Even though Ray's defense was also self-defense, the court determined that there was sufficient evidence of a lack of an intent to kill. The sufficient evidence in Ray was that: "Defendant and others testified that he had taken a number of `reds' (secobarbital) during the day of the killing, and there was expert testimony to the effect that analysis of specimens taken from defendant on the day of the killing disclosed .15 milligrams percent of secobarbital in defendant's bloodstream. According to the testimony of an expert witness *1163 such a drug level in conjunction with a concussion of the brain would result in difficulty in thought transmissions and in the formation of sound judgments. Several lay witnesses testified that defendant appeared dazed at the times of the encounters." (Fn. omitted.) (14 Cal.3d at p. 25.)
We imply from Ray that a lack of an intent to kill may be indicated by evidence that a defendant was acting like an automaton, robot-like or in a trance or dazed, i.e., that the body was moving without the mind.
In People v. Molina, supra, 202 Cal. App.3d 1168, the defendant was found guilty of second degree murder and found not guilty by reason of insanity and committed to the department of mental health for killing her infant son by stabbing him repeatedly in the heart. Although the trial court had permitted evidence of her ability to form the requisite mental states to be introduced, it had refused to instruct on voluntary and involuntary manslaughter. The appellate court concluded that evidence of defendant's mental illness presented a factual issue if she could form malice and intent to kill, and therefore voluntary and involuntary manslaughter instructions should have been given. (Id., at p. 1175.)
In People v. Jackson (1989) 49 Cal.3d 1170, 1196 [264 Cal. Rptr. 852, 783 P.2d 211], the court held that given the defendant's testimony that he had no memory of the shooting and the expert testimony on the effects of PCP on a chronic user, the trial court had a sua sponte duty to instruct, as it had done, on both voluntary and involuntary manslaughter.
In this case, there was substantial evidence regarding appellant's intoxication due to drug use. Both Clifford Delasantos and Richard Reeves testified to the fact that appellant consumed methamphetamine on the night of the shooting. Other witnesses testified about appellant's past use of drugs, their effect on him and the amount of methamphetamine found in his bloodstream following his arrest.
Expert testimony was received on the effects of appellant's long term drug use. Dr. Siegel stated that the amount of methamphetamine found in appellant's blood samples was a high concentration of methamphetamine about 10 to 15 times the amount normally used for theraputic purposes. In Siegel's opinion, appellant was intoxicated with methamphetamine on the night of the shooting, experiencing a paranoid psychotic episode and hallucinating that he was about to be the victim of a drive-by shooting.
Bass testified that appellant exhibited bizarre behavior that appellant rambled in his speech, rocked back and forth in the car seat, and was "out of it." Although Bass testified that appellant "was in complete control," *1164 during cross-examination Bass admitted that he probably told the 911 dispatcher whom he called after he got away from appellant that appellant was crazy, "out of it," "nuts," and "`crazy with a Capital C.'"
Detective Holzberger conducted a detailed two-hour interview of Bass shortly after the shooting. Bass told Detective Holzberger that appellant was acting crazy, "spaced out," and "freaking out."
Several witnesses testified that prior to abducting Bass, appellant had been acting peculiarly. According to Richard Reeves, appellant was paranoid, "sketching" (i.e., one who is always looking behind his back, cannot stop moving or is being paranoid) and "wigged out" (i.e., not in a right state of mind) just before appellant abducted Bass. Dawn Reeves testified appellant acted unusual in her apartment, very paranoid. Bass testified that prior to his abduction, Dawn had warned him that appellant looked "wierded [sic] out, wigged out," and high on drugs.
The testimony here is similar to the testimony in Ray that Ray was dazed in that it suggests that appellant did not know what he was doing, that his body was moving without his mind. Appellant's behavior and his history of drug use and ingestion of an excessive amount of methamphetamine on the night of the shooting presented a factual question for the jury regarding whether appellant was able to actually form the intent to kill. Respondent argues that the factual question regarding appellant's intent was resolved adversely to him by the jury's finding him guilty of second degree murder.
In People v. Roberts (1975) 51 Cal. App.3d 125, 133 [123 Cal. Rptr. 893], and People v. Matta (1976) 57 Cal. App.3d 472, 482-484 [129 Cal. Rptr. 205], the courts determined that the failure of the respective trial courts to give the diminished capacity-involuntary manslaughter instruction while error, was not prejudicial error because the jury in convicting the defendants of second degree murder, impliedly found malice aforethought, which impliedly determined the factual question presented by the missing instruction adversely to defendant under properly given instructions.
In Matta, the court noted that in Ray the jury had convicted Ray of voluntary manslaughter. The Matta court reasoned that the jury there had impliedly found malice aforethought because it had convicted the defendant of second degree murder, which meant that the jury had chosen to reject the evidence of diminished capacity as negating malice. (57 Cal. App.3d at pp. 482-483.) However, involuntary manslaughter instructions were given in both Matta and Roberts, while in the instant case, no involuntary manslaughter instruction was given.
*1165 (2) Furthermore, although the court in Ray noted that the defendant had been convicted of the least severe crime, it went on to state that: "In any event an erroneous failure to instruct on a lesser included offense constitutes a denial of the right to have the jury determine each material issue presented by the evidence, and such error cannot be cured by weighing the evidence in an effort to determine that it would not be reasonably probable that a correctly instructed jury would have convicted defendant of the lesser included offense." (People v. Ray, supra, 14 Cal.3d at pp. 31-32.) (1b) Therefore, we conclude that the question of appellant's intent to kill was not resolved by the jury as it did not have the full range of applicable lesser included offenses offered to it.
Accordingly, we conclude that the trial court here erred in not giving a proper involuntary manslaughter instruction as delineated by Ray. However, although the failure to give an involuntary manslaughter instruction was prejudicial, the failure infected only the second degree murder conviction, not the lesser included offense of involuntary manslaughter. We note that appellant's defense was manslaughter and unreasonable self-defense. Thus, there was no question at trial that appellant killed Zacharis; therefore, we will reverse with directions to enter a judgment of guilty of involuntary manslaughter if the prosecutor agrees or to set the cause for retrial if the prosecutor does not so consent. (See People v. Riederer (1990) 217 Cal. App.3d 829, 836-837 [266 Cal. Rptr. 355].)
Since we reverse the second degree murder conviction based on an instructional error, we will not address appellant's other alleged instructional errors. Accordingly, we now turn to appellant's other contentions. Even though appellant will have to be resentenced should the prosecutor decide not to retry the case, we will assume that the prosecutor will decide not to retry this case in order to discuss appellant's other contentions, including his contentions regarding the sentencing pertaining to both crimes.
II. The People Provided Proper Discovery, and the Court Used Appropriate Reports in Sentencing Appellant
A. There was no error in allowing the use of the prior arrest report during trial
(3a) Appellant contends that the trial court committed prejudicial error when it allowed the prosecution to cross-examine David Johnson, a defense character witness, about appellant's 1981 juvenile arrest for battery on a police officer. The prosecutor asked Johnson if he knew that appellant had been shot by a police officer who was acting in self-defense when appellant was beating the officer with a stick. Johnson, who had not known appellant *1166 in 1981, testified that he had heard that appellant had been shot, but did not know any of the details of the incident.
Appellant claimed surprise and objected to the fact that the arrest report had not been disclosed prior to trial. The court noted that Johnson was being examined regarding appellant's reputation for violence in the community and that the discovery request did not request any history of possible acts or threats of violence by appellant. The court noted that the prosecution could not use the evidence in its case-in-chief and then overruled appellant's objection.
Appellant claims that section 859 requires the prosecution to deliver or make accessible all "police, arrest, and crime reports" regardless of whether the information was requested in a formal discovery order. Appellant was provided a copy of the investigation report of the 1981 arrest during the argument about the use of that report. Appellant argues that the court's denial of appellant's continuance request and its failure to compel midtrial discovery of all prior arrest reports denied appellant's due process right to a fair trial on the issues of guilt and punishment, especially since the prosecution lodged five prior arrest reports at the time of sentencing.
(4) (See fn. 4.), (3b) Even though the trial court has the inherent power to order discovery when the interests of justice so demand (Holman v. Superior Court (1981) 29 Cal.3d 480, 483 [174 Cal. Rptr. 506, 629 P.2d 14]), appellant did not make a motion for discovery midtrial nor has he provided any authority[4] as to why the court should have sua sponte ordered midtrial discovery.
Appellant cites no authority for his proposition that section 859 requires the prosecution to disclose all police, arrest and crime reports relating to a defendant rather than the reports of the current or charged offenses. The language of the statute suggests that only the reports relative to the current charges must be produced. We note that in People v. Aguirre (1987) 193 Cal. App.3d 1168, 1171 [238 Cal. Rptr. 750], the court in addressing the defendant's contention regarding the failure of the prosecutor to provide reports pursuant to section 859, refers to reports bearing directly on the instant charges. The purpose of the statute is for the defendant to secure and be represented by counsel at the preliminary hearing before the judge begins the examination. (People v. Terry (1962) 57 Cal.2d 538, 554 [21 Cal. Rptr. 185, 370 P.2d 985].) Since the purpose of the preliminary hearing is to weed out groundless charges (Witkin, Cal. Criminal Procedure (1963) *1167 § 132, pp. 127-128; id. (1985 supp. pt. 1) at pp. 168-169), it would not be necessary for a defendant's attorney to have the defendant's entire criminal history at this point in the legal process.
Appellant cites In re Ferguson (1971) 5 Cal.3d 525, 532 [96 Cal. Rptr. 594, 487 P.2d 1234], for the proposition that in some circumstances, the prosecution must, without request, disclose substantial material evidence favorable to the accused. (5) It is true that the prosecution has a duty to disclose all material evidence favorable to a defendant, including evidence relating to guilt, punishment, and the credibility of witnesses. (People v. Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal. Rptr. 261, 534 P.2d 1341].)
The Ruthford court noted that for the failure to disclose to be reversible error, the defendant must make a showing of substantial materiality of the undisclosed evidence. (14 Cal.3d at p. 409.) In Ruthford, the suppression of substantial material evidence bearing on the credibility of a key prosecution witness was held to be a denial of due process within the meaning of the Fourteenth Amendment. (Id., at p. 408.)
(3c) We conclude that evidence of appellant's prior arrest for battery on a police officer does not fall into the category of favorable evidence. We note that appellant makes no attempt to discuss why this information was favorable to him or why the evidence was material much less substantial. (See In re Ferguson, supra, 5 Cal.3d at pp. 532-534.) Johnson was one of many defense character witnesses, and he was questioned only briefly about the arrest since he knew very little about the incident other than rumor. The report was not substantially material.
(6) Appellant also argues that his rap sheet information should have been provided regardless of whether it was listed in the discovery order. A discovery request must specify the material sought and furnish a plausible justification for inspection. (Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804 [91 Cal. Rptr. 594, 478 P.2d 26].) Moreover, the defendant must also offer an explanation as to why he could not obtain the factual information sought directly from the source. (Id., at p. 806.) Accordingly, appellant's suggestion that his rap sheet information should have been provided is without merit since sections 11105, subdivision (b)(8) and 11120-11126 provide the means by which a defendant's attorney can obtain the defendant's rap sheet information. There is no reason for a prosecutor to do defendant's work for him.
B. The trial court's reference to appellant's prior arrest reports at the time of sentencing was proper
(7) Appellant contends that the trial court erred at sentencing by considering arrest reports of five previous arrests of appellant as he did not have *1168 an opportunity to challenge the validity of the reports. Citing People v. Calloway (1974) 37 Cal. App.3d 905 [112 Cal. Rptr. 745], appellant argues that the reports could not be properly considered because they were not part of the probation report, and if the reports were used as a statement in aggravation, copies should have been served at least four days prior to the sentencing hearing pursuant to California Rules of Court, rule 437.
Calloway held that records of police contacts relating to crimes with which a defendant is neither convicted nor charged should not be included in a probation report without supporting factual information. (37 Cal. App.3d at pp. 908-909.) The reports at issue here are the arrest reports themselves. The court indicated that it had read each report and decided what, if any, relevancy each report had to the crimes of which appellant had been convicted.
In relevant part, section 1170, subdivision (b) provides that: "In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, ... and any further evidence introduced at the sentencing hearing." (Italics added.)
Rule 437(a) requires that statements in aggravation shall be filed and served at least four days prior to the sentencing hearing. Arrest reports are not statements in aggravation as can be seen from rule 437(c)'s requirements regarding the contents of a statement in aggravation. Therefore, the four days notice does not apply to the use of the arrest reports, and we conclude that the trial court committed no error in referring to the arrest reports at the time of sentencing.
III. The Trial Court Committed No Sentencing Errors
A. The court cited proper factors to justify imposing the upper term on the false imprisonment conviction
Appellant contends that the court relied on a number of improper rule 421 factors to impose an aggravated sentence and that the facts do not support the court's stated reasons for imposing the upper term on the false imprisonment conviction.
When imposing sentence on the false imprisonment conviction, the court stated that: "This crime was aggravated and that it involved great violence, great bodily harm, and threat of great bodily harm and a high degree of *1169 cruelty as pursuant to section 421 of the rules of court. The crime involved multiple victims. It is a random crime where the victim is particularly vulnerable, and for that reason, on the 136 [sic] charge, he is sentenced to the upper of term of three years." The court noted that there were no factors in mitigation.
Rule 421(a) lists circumstances in aggravation. Among the factors listed are: "The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness"; "The defendant was armed with or used a weapon at the time of the commission of the crime"; and "The victim was particularly vulnerable"; and "The crime involved multiple victims."
(8) The court has an obligation to convince itself that, when compared to other ways in which such a crime could be committed, the manner of the instant crime's commission indicated viciousness and callousness. (People v. Harvey (1984) 163 Cal. App.3d 90, 117 [208 Cal. Rptr. 910].) "`The essence of "aggravation" relates to the effect of a particular fact in making the offense distinctively worse than the ordinary.'" (Ibid.)
(9a) Appellant argues that the court's findings are not supported by the record in that the offense did not involve great violence or multiple victims, Bass conceded that appellant had not threatened to kill him verbally nor threatened him with the gun, no great bodily harm was inflicted on Bass, no high degree of cruelty was involved, and the crime was not a random crime with a vulnerable victim because it was Bass who pushed appellant outside the apartment and drove appellant wherever appellant wanted to go. It is true that Bass was not injured nor were there multiple victims of the offense of false imprisonment. However, we conclude that the facts do support the court's findings that the crime involved a threat of great bodily injury, which disclosed a high degree of cruelty, and a vulnerable victim.
(10) We recognize that: "As defined in section 236, `False imprisonment is the unlawful violation of the personal liberty of another.' Without more, the conduct described in section 236 is a misdemeanor offense. (§ 237.) If effectuated by `violence, menace, fraud or deceit,' false imprisonment is elevated to a felony. (§ 237.)" (People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal. Rptr. 1, 560 P.2d 1180].) Pursuant to rule 441(d), since violence or menace are elements of felony false imprisonment, they may not be considered as factors in aggravation. (People v. Flores (1981) 115 Cal. App.3d 924, 927 [171 Cal. Rptr. 777].) Accordingly, great violence is necessary in order to be used as a factor in aggravation.
In People v. Collins (1981) 123 Cal. App.3d 535, 539 [176 Cal. Rptr. 696], the court observed that: "one who holds a cocked gun to his victim's head *1170 over a period of several hours is significantly more culpable than one who merely points the weapon at the victim." The court reasoned that such facts were indicative of viciousness and callousness. (Ibid.) (9b) In this case, although Bass initially offered to take appellant somewhere, he was forced under the threat of being shot to aimlessly drive appellant around, obeying appellant's commands to make right or left turns, run red lights, and speed up or slow down. Even though appellant may not have verbally threatened to shoot Bass, appellant's pointing his gun at Bass during this time constituted a threat. These facts indicate an attitude of cruelty and viciousness or callousness on appellant's part. Bass testified that he was scared of appellant because of the gun. Not only had Bass seen appellant choking and threatening Tim Clark earlier in the evening, but also Bass was forced to observe a killing. The facts of this case go beyond the use of the gun to deprive Bass of his freedom.
Moreover, Bass was a vulnerable victim. "Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." (People v. Huber (1986) 181 Cal. App.3d 601, 629 [227 Cal. Rptr. 113].) Bass was occupied with driving his car, which had a manual transmission, on city streets at appellant's directions at gunpoint, exposing Bass to the risk of a traffic accident. Appellant attempted to involve Bass in two possible murders. Had appellant been able to shoot the sheriff's officers and had they been chased, then Bass would have been vulnerable to being perceived as an accomplice to appellant or to any attack upon the car. Thus, Bass was defenseless, accessible and susceptible to appellant's criminal act.
Appellant argues that In re Culbreth, supra, 17 Cal.3d 330, and rule 441(b) and (c) prohibit the dual use of a gun enhancement as an aggravating factor. Although the court cited appellant's gun use as an aggravating factor, the use of the same fact to enhance and to aggravate is harmless when there are other factors in aggravation. (People v. St. Germain (1982) 138 Cal. App.3d 507, 524-525 [187 Cal. Rptr. 915].) As already discussed, there were other factors in aggravation and no factors in mitigation in this case. Accordingly, we conclude that there were sufficient facts to justify the imposition of the upper term on the false imprisonment sentence.
B. There was no error in imposing two consecutive terms based on the firearm use enhancements
(11a) Since we have given the prosecutor the option of retrying this case or accepting the involuntary manslaughter conviction, we will discuss *1171 appellant's contention that the court erred when it imposed two separate and consecutive terms based on an assertedly single firearm use enhancement because the sentence violated the single occasion rule of In re Culbreth, supra, 17 Cal.3d 330.
The jury found the gun use enhancements to be true with respect to both offenses. The court found that the two offenses were "totally and completely separate," that before Zacharis was shot, he was not even a thought in appellant's mind, and that Bass was falsely imprisoned for reasons known to appellant at that time long before Zacharis came on the scene. The court's implied determination that the false imprisonment and murder did not constitute an indivisible course of conduct is supported by the evidence adduced at trial. (People v. Green (1985) 166 Cal. App.3d 514, 518 [212 Cal. Rptr. 451].)
Appellant argues that under In re Culbreth, supra, 17 Cal.3d 330, 333-334, a firearm use enhancement can only be used once if there was a single or indivisible action because the purpose of section 12202.5 is to deter the use of firearms on subsequent occasions. The court reasoned that a defendant may not avoid additional penalties by claiming that a series of divisible acts, each of which had been committed with a separate identifiable intent and objective, composed an indivisible transaction. (Id., at p. 333.) On the other hand, if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, then section 12022.5 may be invoked only once and not in accordance with the number of victims. (Id., at pp. 333-334.) In Culbreth, the court concluded that there was a single transaction and single objective, i.e., "a single frenetic act of violence," where the defendant shot three victims in a matter of seconds. (Id., at pp. 334-335.)
(12) There is a single occasion absent any meaningful separation in time or the emergence of a criminal objective unrelated to the defendant's primary criminal enterprise. (People v. Levitt (1984) 156 Cal. App.3d 500, 512-513 [203 Cal. Rptr. 276].) As noted by the court in People v. Raby (1986) 179 Cal. App.3d 577, 586-591 [224 Cal. Rptr. 576], there is no clear line dividing which circumstances are considered a single transaction and which circumstances are considered separate transactions.
(11b) The two crimes at issue here occurred during the same time since while appellant falsely imprisoned Bass, he killed Zacharis. However, we cannot say that these two acts constituted one continuous transaction. Despite *1172 appellant's claim that the crimes were interrelated because he had his gun drawn at all times and because he told Bass that he was on a mission and that Bass was his wheel man, the objective in using the gun to deprive Bass of his freedom differs from the objective in using the gun to deprive Zacharis of his life. Appellant had time to pause and think of the consequences of his actions after Bass caused him to miss the opportunity to shoot the sheriff's officers. Since appellant's defense was self-defense based on his hallucination that he was going to be the victim of a drive-by shooting, he cannot convincingly argue that his objective in falsely imprisoning Bass was to kill another person.
Accordingly, we conclude that appellant had time out to pause and reflect on the penal consequences of each act and the motivations underlying the uses of the gun were unrelated to each other. (People v. Raby, supra, 179 Cal. App.3d 577, 586.) Therefore, the imposition of the two gun use enhancements, one for each offense, was proper.
(13) Lastly, appellant contends that section 654 bars the use of consecutive sentences. Appellant argues that pursuant to section 654 and 669 and rule 425, since the false imprisonment was incidental to the murder, the false imprisonment sentence should have been ordered to run concurrent to the murder sentence. The court imposed consecutive sentences based on findings that the crimes were independent of each other and there was a vulnerable victim. As already discussed, we reject appellant's arguments that the court was wrong in finding that the crimes were independent of each other and that Bass was not a vulnerable victim. Accordingly, we conclude that section 654 does not bar the use of consecutive sentences.
As conceded by the People, the abstract of judgment incorrectly states that the determinate sentence for false imprisonment is to run consecutive to the indeterminate sentence for murder. (§ 669; People v. Grimble (1981) 116 Cal. App.3d 678, 684-685 [172 Cal. Rptr. 362].) However, since the case is being remanded for sentencing for involuntary manslaughter or retrial for second degree murder, there is no need to correct the abstract as under either option appellant will have to be resentenced.
DISPOSITION
For the reasons stated, the judgment is reversed and the cause remanded to the superior court with directions to enter a judgment of guilty of involuntary manslaughter, if the prosecutor consents to forgo prosecuting *1173 defendant for second degree murder, or to set the cause for retrial, if the prosecutor does not so consent.
Lillie, P.J., and Johnson, J., concurred.
Respondent's petition for review by the Supreme Court was denied June 19, 1991.
NOTES
[1] Unless otherwise noted, all statutory references are to the Penal Code.
[2] All rule references are the California Rules of Court.
[3] For an example of the type of instruction which could be adapted to this case see People v. Conley (1966) 64 Cal.2d 310, 324, footnote 4 [49 Cal. Rptr. 815, 411 P.2d 911].
[4] "`Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.'" (People v. Dougherty (1982) 138 Cal. App.3d 278, 282 [188 Cal. Rptr. 123].)
|
573 F.Supp. 200 (1983)
Ralph F. NISHIYAMA and wife, Gabrielene Nishiyama, as surviving parents and next-of-kin of Kathy Jane Nishiyama, deceased
v.
DICKSON COUNTY, TENNESSEE; a political subdivision of the State of Tennessee, Dowell (Doyle) Wall and Carroll Fizer.
No. 82-3952.
United States District Court, M.D. Tennessee, Nashville Division.
September 15, 1983.
*201 Richard H. Batson, Clarksville, Tenn., John T. Conners, Jr., and Kenneth H. King, Jr., Nashville, Tenn., for plaintiffs.
Douglas Fisher, R.B. Parker, Jr., and Thomas A. Higgins, Nashville, Tenn., for defendants.
MEMORANDUM
MORTON, Chief Judge.
This is an action pursuant to 42 U.S.C. §§ 1983 and 1985. The plaintiffs allege that the defendants deprived Kathy Jane Nishiyama, their daughter, of rights secured to her by the United States Constitution. Named as defendants are Dickson County, Tennessee; Dowell (Doyle) Wall as Sheriff of Dickson County; and Carroll Fizer as Deputy Sheriff of Dickson County. The defendants have moved that the complaint be dismissed for failure to state a claim. Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the defendants' motion shall be granted.
Taking the plaintiffs' pleadings as true, they allege that on November 16, 1981, Charles Edward Hartman was a prisoner at the Dickson County Jail serving a sentence for burglary. Dickson County had apparently accepted custody of him pursuant to a contract with the State. See Tenn.Code Ann. §§ 41-8-101 to 116 (1982), a mechanism whereby nondangerous felons are housed in county jails rather than in state institutions.
The plaintiffs allege that the defendants knew or should have known that Hartman was a dangerous man who had assaulted a young woman in the past.[1] Despite their alleged knowledge, the defendants placed Hartman on trusty status.[2]
Having made him a trusty, Wall and Fizer adopted a policy of allowing Hartman to have unsupervised use of Dickson County patrol cars to perform personal and official tasks for their benefit as well as his own. The plaintiffs allege that this policy had been in effect several months as of the night of the murder. Dickson County is made a defendant to this action because its officials supposedly knew of this custom or policy, and the danger it posed to the public, but did nothing to stop it.
On the evening of November 16, 1981, Deputy Fizer is alleged to have instructed Hartman to drive him to his farm. Night had fallen, and Fizer's farm was located several miles from the Dickson County Jail. Upon arriving at his farm, Fizer turned sole possession of the patrol car over to Hartman. There is no allegation as to what instructions, if any, Fizer gave Hartman.
The complaint alleges that after leaving Fizer's farm, Hartman proceeded to prowl the highways of Dickson, Houston, and Montgomery Counties. He stopped several motorists by flashing the patrol car's blue lights. Montgomery County officials were informed that a Dickson County Sheriff's car was stopping motorists in their county. They notified the Dickson County dispatcher. The dispatcher notified Wall and Fizer, neither of whom did anything.
*202 Some 10 hours after he had left the jail, Hartman returned. It is the plaintiffs' contention that in the interim he had pulled their daughter's car over by flashing the patrol car's lights and then murdered her. Her death, they assert, was proximately caused by the gross negligence of the defendants, specifically their acts of placing Hartman on trusty status and allowing him to have unsupervised use of a patrol car.
The fundamental question presented by this case is whether the defendants, while acting under color of state law, deprived the plaintiffs' decedent of rights secured to her by the Constitution and laws of the United States, i.e., was she deprived of her life, under color of state law, without due process of law. Thus, was the plaintiffs' daughter deprived of a federal right as distinguished from a state right? Was she deprived of any right protected or secured by the Constitution or laws of the United States? See Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495, 1506 (1945); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Only specific acts done "under color of law" and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States state a cause of action under § 1983. See, e.g., Screws, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed. 1495, 1507 (1945).
Turning first to the question of whether the acts which deprived the decedent of her life were performed "under color of state law," we find an allegation that the defendants, individuals and the county, made Hartman a "trusty," entrusted him with a sheriff's car, and permitted him to run errands as a trusty. On the occasion in question he was entrusted with the vehicle after delivering a deputy sheriff to his home. Thereafter, Hartman played sheriff and killed the plaintiffs' daughter. Insofar as the activities of Hartman are concerned, they must be measured against the requirement that they be the activities of a bona fide official performed in the furtherance of his lawful duties or the activities of a bona fide official purporting or pretending to perform lawful acts before they can be characterized as actions under color of state law. Screws, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495, 1508 (1945). Obviously, Hartman was not a county official and he was not performing any official duties. Clearly he cannot be made an official by estoppel or by the extension of the doctrine of apparent authority under the theory of agency. "Color of law" refers specifically to the actions of officials and not pseudo officials or officials by estoppel. It does not refer to personal and non-official pursuits. Id.
But this does not end the necessary examination. We must examine the actions of the officials, i.e., the sheriff and his deputy.
There is no allegation that the "trusty" system is not a valid tool in the correction system of the state and counties. There is not an assertion that the system was improperly established or maintained. There is an allegation that, as to this defendant, the system was improperly implemented. The state statute authorizing the transfer of prisoners to counties for housing classifies the prisoners as nondangerous felons. Tenn.Code Ann. § 41-8-102. The complaint alleges:
(1) Hartman had been convicted of burglary.
(2) Hartman had a prior criminal record.
(3) Hartman had previously assaulted a young lady.
(4) "His documented psychological makeup, personality and character was such that he would present an unreasonable risk and danger to the public if he were permitted to leave the jail confinement and [be] given possession" of a patrol car.
It is beyond question that the decision to make Hartman a "trusty," and give him the privileges incident thereto was made under "color of law" since it was a decision made as an official act. However, having so stated, is there any duty to the plaintiffs' daughter or any causal connection between the decision to make Hartman a "trusty" and the resulting death in the sense of color of law? Hartman was granted limited liberty for specific acts and conduct. His individual acts for his personal pursuits *203 were not under color of law of the sheriff or his deputy. The decision to give him limited liberty was official action. Hartman's individual actions cannot be characterized as official actions. However pretermitting this question, the plaintiffs have failed to allege a constitutional deprivation of rights. No specific provision of the Constitution or laws of the United States is alleged to be applicable except the 14th Amendment or due process. Violation of local law does not activate the 14th Amendment. The fact that a murder is committed by a private or state official does not activate the 14th Amendment. The due process clause of the 14th Amendment has been discussed by the Supreme Court of the United States on many occasions, but when invoked, it specifically protects a recognized right or interest identified in the Constitution or by law. Paul, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405, 413 (1976); accord Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711, 733 (1977). This is not a situation where after being arrested on a valid warrant there was a trial by ordeal. See Screws, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495, 1505 (1945). Nor is it a case where there is a claim of a violation of the 8th Amendment. Nor is it an instance arising out of a factual background previously determined by stare decisis as being one which meets the dignity and stature of a constitutional violation requiring procedural due process. Here Hartman was negligently or recklessly granted a limited liberty interest by a county official. He allegedly committed a random murder. He was not carrying out any state or county procedure. He was engaged in separate individual acts for which there is an adequate state remedy under traditional tort law principles. The alleged misuse of the "trusty system" was not so egregious as to infer a deprivation of constitutional rights. Here there was no alleged malice, but only negligence and possible recklessness. There was no abuse of power. Here, also, there is no allegation of fact indicating that any official approved or knowingly acquiesced in the conduct of Hartman. See Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.1982). There has been no deprivation of a constitutional right.
Even if we were to hold that all the actions complained of were performed under color of state law and that those actions deprived Kathy Nishiyama of her life, we could not hold that the deprivation in this case occurred without due process of law. We reach this conclusion based upon our interpretation of the United States Supreme Court's holding in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
To properly apply Parratt, one must carefully identify what that case did and did not hold. Parratt did hold that § 1983 itself does not contain an intent requirement, i.e., a cause of action can be brought under that statute for a negligent deprivation of rights. Id. at 534, 101 S.Ct. at 1912, 68 L.Ed.2d at 427. That holding accords with the Court's pronouncement in Monroe v. Pape that "Section 1979 (1983) should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, 505 (1961). Parratt did not hold that a person is deprived of his rights without due process every time a state official negligently deprives him of his life, liberty, or property. On the contrary, as we shall explain below, so long as there is an adequate postdeprivation remedy in the state courts, Parratt holds that anything short of an intentional deprivation of those rights protected by the 14th Amendment will not constitute a deprivation of due process. This is not to say that an intentional deprivation will in every case constitute a violation of due process, see Paul, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), but intent is at least a threshold requirement.
The due process clause of the 14th Amendment assured the plaintiffs' daughter that the state would not take her life from her without due process of law. Due process requires that one be granted an opportunity to be heard "at a meaningful time and in a meaningful manner." Parratt, *204 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420, 432 (1981) (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). In Parratt, the Court summarized its cases examining what process was due when a deprivation of property was involved as follows:
These cases recognize that either the necessity of quick action by the state or the impracticality of providing any meaningful predeprivation process can, when coupled with the availability of some meaningful means by which to assess the propriety of the state's action at some time after the initial taking, satisfy the requirements of procedural due process.
Id. 451 U.S. at 539, 101 S.Ct. at 1914, 68 L.Ed.2d at 431. The Court went on to find that it would have been impractical to grant the plaintiff a predeprivation hearing in the case before it since his loss was the "result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur." Id. 451 U.S. at 541, 101 S.Ct. at 1915, 68 L.Ed.2d at 432. The plaintiffs have stressed in their briefs and at oral argument that the loss in this case was caused by an established state procedure. When the Court spoke of a loss "resulting" from an established state procedure, however, it meant that the procedure itself must have caused the loss, not that it created a state of affairs that made it possible for a third person to randomly cause the loss.
Such an interpretation of Parratt is supported both by logic and the language of subsequent precedent. Logically, it is impossible for the state to ever predict when a deprivation will occur unless the actions taken by its agents were intended to cause the deprivation at issue. There need not be a subjective intention to deprive the plaintiff of a right unconstitutionally, but there must at least be an objective awareness that the actions taken will deprive persons of their life, liberty, or property. The Court clarified this point in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). In that case, the plaintiff brought a § 1983 claim on the grounds he had been deprived of his property without due process of law. He had filed an employment discrimination claim with the Illinois Fair Practice Commission. That body had failed to convene a fact-finding conference within the statutory time period. The Illinois Supreme Court found the time period to be a jurisdictional prerequisite which barred the plaintiff from pursuing his claim. Citing Parratt, the appellees argued that the plaintiff had not been denied due process since he could sue the members of the Commission for negligence in state court. The U.S. Supreme Court did not agree. It distinguished Parratt by noting that "Here, in contrast, it is the state system itself that destroys a complainant's property interest, by operation of law, whenever the Commission fails to convene a timely conference whether the Commission's action is taken through negligence, maliciousness, or otherwise." Id. 455 U.S. at 436, 102 S.Ct. at 1158, 71 L.Ed.2d at 278 (emphasis added).
Once one accepts that the key to determining when a predeprivation hearing must be held to satisfy due process is whether the state action was intentional or not, it is obvious that there is no principled basis on which the rule in Parratt can be restricted solely to deprivations of property. It is just as impossible to predict when an unintentional deprivation of life or liberty will occur as it is when property is the interest at stake.
Here there is no allegation that the trusty system is not a valid tool in the correction system of the state and counties. There is no assertion that the system was improperly maintained. There is an allegation that it was improperly implemented, but there is no allegation that the improper implementation was harmful in itself. What the plaintiffs really allege is that the actions the defendants took made it possible for Hartman to murder their daughter. That act of murder, however, was a random act. The only practical, indeed the *205 only possible remedy any court can give these plaintiffs is one after the fact. Since Tennessee provides them with the opportunity to secure such a remedy, see Tenn. Code Ann. § 29-20-205 (1980), the plaintiffs have not been denied due process.
To summarize, the action taken by the defendants to further their personal objectives were not under color of state law. Those actions taken by the defendants which were under color of state law did not deprive the plaintiffs' decedent of her life in the constitutional sense. Even if we were to hold that the defendants' actions were under color of state law and that they did deprive the decedent of her life, the deprivation was not without due process, given the remedy available in the state courts.
It only remains to decide the plaintiffs' equal protection claim. We do not think that the defendants have or can allege that Kathy Nishiyama was a member of a class which was placed in any greater peril by the defendants' acts and omissions than the public at large. Even if the plaintiffs can prove the existence of such a class, they have not alleged sufficient class-based animus on the part of the defendants toward that class to state a cause of action. Thus, we find there has been no denial of the equal protection of the laws, nor has there been any conspiracy to deprive anyone of the equal protection of the laws.
For the reasons set forth above, this case is dismissed. An appropriate order will be entered.
NOTES
[1] The plaintiffs allege that defendant Wall was or should have been alerted to Hartman's violent nature by the latter's past conduct, documented psychological makeup, personality, and prior assault history. They further allege that Hartman was unworthy of trust, and so dangerous that he should have been kept constantly confined. The plaintiffs do not allege, however, that Hartman's burglary conviction placed him in a class of felons which rendered him ineligible to participate in various rehabilitation programs. See Tenn.Code Ann. §§ 39-1-703 (1982); XX-XX-XXX (1982). Indeed, the statute under which Hartman was apparently transferred to the Dickson County Jail only permits nondangerous felons to be so assigned. See Tenn.Code Ann. § 41-8-102 (1982).
[2] The parties have not directed the court to any statute, ordinance, or regulation governing the trusty system in this state nor has the court been able to locate one. In fact, Inmates, Washington City Jail v. England, 516 F.Supp. 132 (E.D.Tenn.1980) holds that conferral of a trusty status rests solely within the discretion of jail administrators. England, 516 F.Supp. 132, 141 (E.D.Tenn.1980), aff'd mem., 659 F.2d 1081 (6th Cir.1981).
|
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 74310-4-1
Respondent,
DIVISION ONE
V.
JAMEEL L. PADILLA, UNPUBLISHED OPINION
Appellant. FILED: April 24, 2017
SPEARMAN, J. — Jameel Padilla was convicted of two counts of viewing
depictions of a minor engaged in sexually explicit conduct in the first degree and
two counts of the same offense in the second degree. On appeal, he contends
that his convictions must be reversed because the charging document and the to
convict jury instruction omitted an essential implied element of the charged
crimes. Padilla also asserts that the community custody condition imposed by the
trial court prohibiting him from frequenting places where minors congregate is
unconstitutionally vague. We accept the State's concession of error as to the
challenged community custody condition, but conclude that Padilla's remaining
arguments are without merit. We remand to strike the unlawful condition, but
otherwise affirm the judgment and sentence.
No. 74310-4-1/2
FACTS
In April 2012, a mother and father reported to the Arroya Grande Police
Department that an unknown individual had sent sexually explicit messages to
their nine-year-old daughter on Facebook. The detectives were informed that the
individual used the profile name "Jim Wilcox." While the detectives were
investigating the complaint, they discovered that the Internet Protocol Address for
the computer used to access the Facebook account was associated with Jameel
Padilla of Everett, Washington.
In September 2012, Everett Police executed a search warrant at Padilla's
home. They seized a laptop computer from the home. A forensic examination of
the computer revealed approximately one hundred sexually explicit photos of
young girls in the unallocated spacel in the computer's memory. It revealed
videos of infants and children engaged in sexually explicit conduct. The
examination also revealed internet search queries that Padilla initiated including:
"child porn Frostwire,"2 "What makes you a pedophile?;" "Eleven year old raped
by 20 men;" "Little girl sucking:" and "How to delete stuff from an unallocated
space." Verbatim Report of Proceedings(VRP)(09/22/15) at 128-29.
Additionally, the examination revealed chat communications where the user was
seeking content of children engaged in sexually explicit conduct.
1 Data in unallocated space is data that has been deleted but continues to exist until it is
overwritten.
2 FrostWire is a peer-to-peer file sharing program.
2
No. 74310-4-1/3
Padilla was charged with two counts of viewing depictions of a minor
engaged in sexually explicit conduct in the first degree, and two counts of the
same offense in the second degree.3 The charging document alleged that Padilla
intentionally viewed over the internet pictures of minors engaged in sexually
explicit conduct.4 The jury instructions for these counts mirrored this language.5
3 Padilla was also charged with one count of communication with a minor for immoral
purposes via electronic communication which was severed from the other charges and tried
separately.
4 The charging document alleged as follows:
That the defendant. . . did intentionally view over the internet, in an internet
session ... visual or printed matter that depicted a minor engaged in [sexually
explicit conduct (first degree) or display of unclothed genitals or female breasts
(second degree)]. ...
Clerk's Papers(CP)at 104-05.
5 The to convict instruction for the first viewing count explained that:
To convict the defendant of the crime of Viewing Depictions of a Minor
Engaged in Sexually Explicit Conduct in the First Degree as charged in Count
I, each of the following elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or about the 1st day of January 2011 through the12th day of
September, 2012, in an internet session separate and distinct from that
alleged in Counts II, Ill, and IV, the defendant intentionally viewed over the
internet visual or printed matter depicting a minor engaged in sexually explicit
conduct;
(2)That the viewing was initiated by the defendant; and
(3) That the viewing of the visual or printed material occurred in the State
of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of
guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty to
return a verdict of not guilty.
CP at 86. The remaining counts were charged similarly, with different definitions of sexually
explicit conduct given for the first and second degree charges.
3
No. 74310-4-1/4
The charging document did not specifically allege, nor did the jury instructions
expressly require the State to prove, that Padilla knew he was viewing minors.
Padilla did not object to the information or jury instructions on this, or any other,
basis. The jury convicted him on all four counts.
The sentencing court imposed several conditions of community custody
including prohibiting Padilla from frequenting areas where minor children are
known to congregate. Padilla appeals.
DISCUSSION
Padilla makes three assignments of error on appeal. The first two concern
whether we should read into the statute defining the crime of viewing depictions
of a minor engaged in sexually explicit conduct(the viewing statute) an additional
element of knowledge that the person depicted is a minor. Padilla claims that
such knowledge is an essential element of the crime and that the charging
document and the to-convict instructions given in this case were deficient
because of its omission. Padilla's third claim challenges a community custody
condition as unconstitutionally vague. We first decide whether Padilla is correct
that a defendant's knowledge that the person viewed is a minor is an essential
element of the charged crimes.
Padilla rests his argument in large part on our decision in State v. Rosul,
95 Wn. App. 175, 974 P.2d 916(1999). In Rosul, we considered the statute
criminalizing the possession of child pornography (the possession statute). The
statute provided, in relevant part, that a person is guilty of possessing child
pornography when that person "knowingly possesses visual or printed matter
4
No. 74310-4-1/5
depicting a minor engaged in sexually explicit conduct. . . ." Id. at 180; RCW
9.68A.070. We concluded the statute was impermissibly overbroad because, for
example, a person delivering a package containing child pornography could
knowingly possess the package and yet be unaware of its contents. Id. at 182.
Thus, applying the statute as written, a person engaged in "clearly innocent
conduct" could be in violation of it. Id. at 183. Accordingly, we construed the
statute to require "a showing that the defendant was aware not only of
possession, but also of the general nature of the material he or she possessed."
Id. at 185.
Padilla argues that the possession statute and the viewing statute are
similar and that, as with the possession statute, in order to save the viewing
statute from being impermissibly overbroad, we must imply an element of
knowledge that the person depicted was a minor. But, as we observed in Rosul,
a statute is only impermissibly overbroad if it "will significantly compromise
recognized First Amendment protections of persons not before the court." Id. at
182 (citing Members of City Council of City of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 801, 104 S. Ct. 2118, 80 L. Ed. 2d 772(1984)). To
support his claim that the viewing statute is substantially overbroad, Padilla must
"demonstrate from the text of[the challenged law] and from actual fact that a
substantial number of instances exist in which the Maw cannot be applied
constitutionally." New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1,
14, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988). He fails to carry this burden.
5
No. 74310-4-1/6
The viewing statute states, in relevant part:
(1) A person who intentionally views over the internet visual or
printed matter depicting a minor engaged in sexually explicit conduct
as defined in RCW 9.68A.011(4)(a) through (e) is guilty of viewing
depictions of a minor engaged in sexually explicit conduct in the first
degree. . . .
(2) A person who intentionally views over the internet visual or
printed matter depicting a minor engaged in sexually explicit conduct
as defined in RCW 9.68A.011(4) (f) or (g) is guilty of viewing
depictions of a minor engaged in sexually explicit conduct in the
second degree ... .
(3). . . The state must prove beyond a reasonable doubt that the
viewing was initiated by the user of the computer where the viewing
occurred.
RCW 9.68A.075.6 Thus, in order to sustain a conviction, this statute requires the
prosecution to prove that a defendant:(1) intentionally viewed visual or printed
material over the internet;(2)that the material viewed depicted a minor engaged
in sexually explicit conduct; and (3)that the viewing was initiated by the
defendant.
6 Subsections (1) and (2) refer to RCW 9.68A.011(4) which reads as follows:
(4)"Sexually explicit conduct" means actual or simulated:
(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or opposite sex or between
humans and animals;
(b) Penetration of the vagina or rectum by any object;
(c) Masturbation;
(d) Sadomasochistic abuse;
(e) Defecation or urination for the purpose of sexual stimulation of the viewer;
(f) Depiction of the genitals or unclothed pubic or rectal areas of any minor, or
the unclothed breast of a female minor, for the purpose of sexual stimulation of the
viewer. For the purposes of this subsection (4)(f), it is not necessary that the minor
know that he or she is participating in the described conduct, or any aspect of it;
and
(g) Touching of a person's clothed or unclothed genitals, pubic area, buttocks,
or breast area for the purpose of sexual stimulation of the viewer.
6
No. 74310-4-1/7
Under a plain reading of the statute's language, we cannot see how the statute
impermissibly jeopardizes First Amendment protections. Nor does Padilla explain
how the statute criminalizes innocent conduct when it only reaches individuals
who initiate an Internet session intending to view material that depicts a minor
engaged in explicit sexual conduct and who, then, in fact, view the very material
sought. Unlike the possession statute, the viewing statute presents no identifiable
risk of sweeping within its prohibitions innocent persons engaged in
constitutionally protected activities.
We conclude that Padilla has not shown that the statute is impermissibly
overbroad and reject his argument that we must imply an additional knowledge
element to the viewing statute. And because his claims that the charging
document and the to convict instructions are deficient hinge on the success of his
overbreadth argument, they also fail. We affirm Padilla's convictions.
Padilla challenges the community custody condition prohibiting him from
frequenting areas where minor children are known to congregate because it is
unconstitutionally vague. The State concedes, and we agree, that the community
custody condition is void for vagueness and should be stricken. In Irwin, we
found that an identical prohibition was an unconstitutionally vague community
custody condition. State v. Irwin, 191 Wn. App. 644, 652-53, 364 P.3d 830
(2015). We therefore remand to the sentencing court with instructions to strike
the vague condition.
Padilla also asks that no costs be awarded on appeal. Appellate costs are
generally awarded to the substantially prevailing party on review. RAP 14.2.
7
No. 74310-4-1/8
However, when a trial court makes a finding of indigency, that finding remains
throughout review "unless the commissioner or clerk determines by a
preponderance of the evidence that the offender's financial circumstances have
significantly improved since the last determination of indigency." RAP 14.2. Here,
Padilla was found indigent by the trial court. If the State has evidence indicating
that Padilla's financial circumstances have significantly improved since the trial
court's finding, it may file a motion for costs with the commissioner.
Remanded to strike the unlawful condition but otherwise affirmed.
Y-ezt
WE CONCUR:
8
|
Case: 18-10353 Document: 00515027635 Page: 1 Date Filed: 07/09/2019
REVISED July 9, 2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 18-10353 June 21, 2019
Lyle W. Cayce
Clerk
NORVIS HARMON,
Plaintiff - Appellant
v.
DALLAS COUNTY, TEXAS; DERICK EVANS,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, ELROD, and WILLETT, Circuit Judges.
PER CURIAM:
This case is about an employment relationship that did not turn out well.
Norvis Harmon, a former deputy constable, brought this action under 42
U.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He
alleges the defendants violated his First Amendment rights when he was
terminated for reporting the illegal acts of Evans and others to law-
enforcement authorities. Harmon additionally alleges the defendants denied
him equal protection of the law in refusing to hear his grievance.
Case: 18-10353 Document: 00515027635 Page: 2 Date Filed: 07/09/2019
No. 18-10353
This is Harmon’s second lawsuit based on these facts, as he previously
filed a state-court lawsuit against Dallas County aggrieving the circumstances
of his termination. He did not enjoy a favorable judgment in that suit.
The district court below disposed of Harmon’s claims through a series of
summary-judgment and 12(c) rulings. 1 The district court dismissed Harmon’s
claims against Dallas County as barred by res judicata, 2 and dismissed
Harmon’s claims against Evans in his individual capacity on the basis of
qualified immunity. 3 For the reasons stated herein, we AFFIRM.
I.
Harmon is a former deputy constable in Precinct 1 of the Dallas County
Constable’s Office. During his employment, Harmon became aware that Evans
and his other superiors were up to some not-so-good things, to wit: (1) requiring
deputies to work for Evans’s political allies without pay; (2) requiring deputies
to donate time and money to Evans’s re-election campaign; (3) illegally setting
quotas for writing traffic citations; and (4) requiring deputies to tow citizens’
vehicles after traffic stops, and to do so with a certain towing company with
whom Evans shared a close relationship.
In November 2009, Harmon reported these activities to Defenbaugh &
Associates, an investigative firm hired by the Dallas County Commissioner’s
Court. Harmon alleges he made similar reports to the Dallas County Human
Resources Department, the Dallas County District Attorney, and the Federal
Bureau of Investigation.
1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex.
2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8,
2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F.
Supp. 3d 814 (N.D. Tex. 2017).
2 Harmon I, 248 F. Supp. 3d at 822.
3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.
2
Case: 18-10353 Document: 00515027635 Page: 3 Date Filed: 07/09/2019
No. 18-10353
Things then went downhill. Word spread that certain deputies were
speaking out, prompting Evans to call a meeting in which he made couched
threats that he would retaliate against those who did. In March 2010, the
Dallas Morning News published an article describing the results of the
investigation and confirmed that certain deputies had spoken out against
Evans’s illegal activities. 4 Although the article did not identify any of the
deputies by name, a separate investigative report did. 5
Evans later initiated an administrative investigation into Harmon and,
finding at least one discrepancy in Harmon’s GPS reports, terminated him
(from employment) on June 3, 2011. Harmon tried to grieve his termination to
Evans, as his department head, and to Dallas County. These attempts were
not successful, because deputy constables hired after August 19, 2003 are
excluded from the Dallas County Civil Service Commission’s grievance system
procedure. 6 As Harmon was hired in 2008, he did not have grievance rights.
So, Harmon turned to litigation.
Harmon first sued Dallas County in Texas state court. He asserted
claims for alleged violations of the Texas Whistleblower Act and Texas
Government Code § 617.005, 7 and an equal protection violation under the
4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have
Broken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS
(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-County-
Constable-Derick-9350.
5 Evans was eventually convicted for engaging in organized criminal activity. The
conviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093,
at *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d).
6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A
employee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A
classified employees are excluded from coverage afforded in employment procedures relating
to job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right
of appeal, and grievance system procedures of this Code.”).
7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public
employees to present grievances concerning their wages, hours of employment, or conditions
3
Case: 18-10353 Document: 00515027635 Page: 4 Date Filed: 07/09/2019
No. 18-10353
Texas Constitution. In addition, Harmon sought injunctive relief and
declaratory relief in connection with his equal protection claim, and a
declaration that Evans’s actions were “illegal and void.” Evans was not a party
to the state-court action.
The County moved to dismiss Harmon’s suit for lack of subject-matter
jurisdiction, arguing that governmental immunity barred Harmon’s
constitutional claims, as well as those brought under the Whistleblower Act
and Local Government Code. The County also argued that Harmon’s requests
for injunctive and declaratory relief embraced ultra vires acts that could only
be asserted against Evans, who was not a party to the suit. The court agreed
with the County, dismissed Harmon’s claims with prejudice, and granted
Harmon the opportunity to replead his claims for declaratory and injunctive
relief. Harmon did not, and the state court eventually entered final judgment
disposing of all claims and parties on November 7, 2013.
Harmon brought his second suit in federal court, asserting two claims
under § 1983: (1) a retaliation claim under the First Amendment, and (2) an
equal protection claim based on the denial of his right to petition the
government. In addition to suing the County (again), Harmon also sued Evans
in both his individual and official capacities. Evans asserted the defense of
qualified immunity, so the district court ordered Harmon to file a Rule 7(a)
reply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the
pleadings based on his qualified-immunity defense, and both defendants later
filed a limited motion for summary judgment asserting that res judicata barred
Harmon’s federal suit. 8
of work either individually or through a representative that does not claim the right to
strike.”).
8 We have simplified the motion practice before the district court.
4
Case: 18-10353 Document: 00515027635 Page: 5 Date Filed: 07/09/2019
No. 18-10353
The district court held that res judicata barred Harmon’s suit as to the
County and Evans in his official capacity, and then granted Evans’s Rule 12(c)
motion on the basis of qualified immunity as to Harmon’s First Amendment
retaliation claim. 9 Harmon, however—and to the apparent surprise of the
district court and the parties—argued that he still had lingering claims under
the First Amendment’s Petition Clause. The district court granted Evans the
opportunity to file a dispositive motion on those claims, 10 and then granted his
motion when he did. 11 Harmon timely appealed.
II.
Harmon brings three issues on appeal. He first argues that res judicata
does not apply to this case. Next, he argues the district court erred in granting
Evans qualified immunity on his First Amendment retaliation claim because
his right to engage in the speech at issue was clearly established at the time of
his termination. Finally, Harmon contends the district court was wrong to
grant Evans qualified immunity on his claims under the First Amendment’s
Petition Clause. We address each in turn.
III.
We apply Texas law to determine the res judicata effect of a Texas
judgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d
632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th
Cir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment
on the merits by a court of competent jurisdiction; (2) identity of parties or
9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.
10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion
regarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four
years. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding
this claim by April 28, 2017.”).
11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on
the basis of qualified immunity).
5
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those in privity with them; and (3) a second action based on the same claims
as were raised or could have been raised in the first action.” Amstadt v. U.S.
Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we
conclude that res judicata bars Harmon’s claims against the County and Evans
in his official capacity, but not as to Evans in his individual capacity.
The first element is met because, under Texas law, a dismissal based on
governmental immunity constitutes a final judgment on the merits for
purposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644
(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the
jurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v.
Walker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on
immunity grounds under Texas law is a dismissal on the merits for purposes
of res judicata.”). As mentioned, the state court dismissed Harmon’s claims
with prejudice based on the County’s assertion that it was entitled to
governmental immunity and later entered a final judgment disposing of all
claims and parties. This element is met.
The third element presents an easy solve under Texas’s “transactional”
approach. “Under this approach, a judgment in an earlier suit ‘precludes a
second action by the parties and their privies not only on matters actually
litigated, but also on causes of action or defenses which arise out of the same
subject matter and which might have been litigated in the first suit.’” Getty Oil
Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In
this case, both of Harmon’s suits arise from the same operative facts and
subject matter—Harmon’s allegedly unlawful termination and his inability to
file a grievance. See Sims, 894 F.3d at 645. And, as the district court observed,
nothing prevented Harmon from bringing his federal claims in state court. See
id. We conclude this element is also met.
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Stepping back, the second element—privity—presents a closer question,
but our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir.
1997) supplies the answer. 12 Warnock stands for the basic proposition that
privity does not exist between a governmental entity and an employee later
sued in his or her individual capacity. See id. at 778. The plaintiff in Warnock
alleged that two state district court judges retaliated against her for
whistleblowing. Although her initial state-court suit against the county was
unsuccessful, the plaintiff later filed suit in federal court against the county
and the judges in their official and individual capacities. Id. at 777. The district
court concluded that res judicata barred suit against the judges in both
capacities, but we disagreed, holding that privity was lacking “between the
county and judges in their individual capacities.” Id. at 778. We cited to Conner
v. Reinhard for support, in which the Seventh Circuit explained that “a city
official sued in his official capacity is generally in privity with the
municipality,” but that “[a] government official sued in his personal capacity,
however, presents a different case.” 847 F.2d 384, 394–95 (7th Cir. 1988). The
reasons for drawing this distinction are legion:
If the plaintiff prevails against the official, the official must satisfy
the judgment out of his own pocket, rather than having the
government entity pay the damages. See Kentucky v. Graham, 473
U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In
addition, different legal theories may be necessary to prove
liability in a personal-capacity, as opposed to an official-capacity,
case. Also, different defenses are available to a defendant who is
sued in his personal capacity. Therefore, courts do not generally
consider an official sued in his personal capacity as being in privity
with the government.
12 There is no question this element is satisfied as to the County, as it was a party in
the prior suit.
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Id. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships
between a government and its officials justify preclusion only as to litigation
undertaken in an official capacity.”). 13 To that end, district courts in this circuit
have applied Warnock to circumstances analogous to those at hand. See Benson
v. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex.
Mar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look
‘pragmatically’ at the privity issue by deciding whether the parties are
‘sufficiently close.’ But Warnock makes clear that defendants sued in their
individual capacities are not ‘sufficiently close’ to their public employers for the
logical reason that they both have different defenses.”). Thus, res judicata does
not bar Harmon’s individual-capacity claims against Evans.
But we agree with the district court that res judicata bars any official-
capacity claims against Evans. An official-capacity claim, after all, is
essentially a claim against the County. See Turner v. Houma Mun. Fire &
Police Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when
“a defendant government official is sued in his individual and official capacity,
and the city or state is also sued,” the “official-capacity claims and the claims
against the governmental entity essentially merge”); Olibas v. Dodson, 593 F.
App’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims
against a municipal official in his official capacity are claims against the
county. . . . Therefore, we need not consider the County separate from the
Sheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x
767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars
13See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists
between the agency and Defendant Wright, who is sued in his official capacity; but privity
does not exist between the agency and the other three Defendants, who are sued in their
individual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment
against a government does not bind its officials sued in their personal capacities.”).
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Harmon’s claims against the County, it also bars Harmon’s official-capacity
claims against Evans. However, because res judicata does not bar Harmon’s
individual-capacity claims, we proceed, as did the district court, to the merits.
IV.
Harmon alleges he was terminated in retaliation for engaging in
protected speech under the First Amendment. Evans, in a Rule 12(c) motion,
asserted the defense of qualified immunity. After ordering supplemental
briefing on this point, the district court held that the law regarding Harmon’s
speech was not clearly established at the time of his termination and thus
Evans was entitled to qualified immunity on Harmon’s retaliation claim. 14
We review de novo a district court’s ruling on a Rule 12(c) motion for
judgment on the pleadings asserting qualified immunity. Johnson v. Halstead,
916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines
whether the plaintiff has pled sufficient facts to defeat a motion to dismiss.”
Id. (citation omitted). “When the defendant asserts qualified immunity, the
court can order the plaintiff to submit a reply, refuting the immunity claim
‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be
tailored to the assertion of qualified immunity and fairly engage its
14 This case was originally before then-Chief Judge Solis, who denied Evans’s
qualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837,
at *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would
have understood such retaliation to be in violation of Harmon’s statutory or constitutional
rights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte
revisited this issue. Judge Lindsay vacated that prior order, concluding that the law
regarding Harmon’s speech was not clearly established at the time of his termination.
Because the denial of qualified immunity is an interlocutory order, the court was free to
revisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool
Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary
judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision
for any reason it deems sufficient, even in the absence of new evidence or an intervening
change in or clarification of the substantive law.”), abrogated on other grounds, Little v.
Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).
9
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allegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.
1995)).
“To evaluate whether a government official is entitled to qualified
immunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed
facts and the disputed facts, accepting the plaintiffs’ version of the disputed
facts as true, constitute a violation of a constitutional right, and (2) whether
the defendant’s conduct was objectively reasonable in light of clearly
established law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)
(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)).
“We have discretion to address either prong first without necessarily
addressing the other.” Id.
To establish a claim for retaliation under the First Amendment, a
plaintiff must show, inter alia, that he “spoke as a citizen on a matter of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez,
845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption
undoubtedly constitutes speech on a matter of public concern, 15 Garcetti
instructs to “first decide whether the plaintiff was speaking as a citizen
disassociated with his public duties, or whether the plaintiff was speaking in
furtherance of the duties of his or her public employment.” Howell v. Town of
Ball, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in
speech pursuant to their official duties, they “are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014,
15 See Lane v. Franks, 573 U.S. 228, 241 (2014) (“The content of Lane’s testimony—
corruption in a public program and misuse of state funds—obviously involves a matter of
significant public concern.”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency
and misconduct is a matter of considerable significance.”); Markos v. City of Atlanta, Tex.,
364 F.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about
alleged corruption in the police department, a subject undoubtedly of public concern.”).
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the Supreme Court emphasized that “[t]he critical question under Garcetti is
whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S.
at 240.
We applied these principles in Howell v. Town of Ball, which we find
controlling. In Howell, we held that a Louisiana police officer’s confidential
involvement with an FBI-led investigation into the illegal acts of the mayor
and other local officials was not “in furtherance of his ordinary job duties.” 827
F.3d at 524. Although we agreed the police officer’s First Amendment rights
were violated when he was terminated in retaliation for cooperating with the
FBI’s investigation, we ultimately concluded the defendants were entitled to
qualified immunity because, at the time of the officer’s termination, “it was not
clearly established whether his involvement in the FBI investigation was
protected under the First Amendment.” Id. at 525. We explained that:
At the time that Howell was fired, Garcetti’s distinction between
speech made pursuant to official duties and speech made as a
private citizen was relatively new, and this court had not
considered it in the context of an action involving a police officer’s
statements to an outside law enforcement agency, or in the context
of a law enforcement officer’s assistance with an outside agency’s
investigation. Garcetti, by its own admission, did not “articulate a
comprehensive framework for defining the scope of an employee’s
duties in cases where there is room for serious debate.” See 547
U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did
not emphasize that only speech made in furtherance of an
employee’s “ordinary” job duties is not protected until nearly three
years after Howell was discharged.
The lack of the application of Garcetti to similar facts at the time
of Howell’s discharge, coupled with the Supreme Court’s only
recent clarification of Garcetti’s citizen/employee distinction
in Lane, compels us to hold that the Board defendants did not
violate a “clearly established” constitutional right when voting to
fire Howell. We thus affirm the district court’s grant of qualified
immunity to the Board defendants.
11
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Id. 525–26 (some internal citations omitted).
The parties here essentially agree that Harmon alleges a violation of his
First Amendment rights; indeed, Evans concedes—ultimately to his
advantage, of course—that “the facts in Howell are identical to the speech at
issue in this case.” And Harmon alleges that it was not part of his ordinary
duties as a deputy constable to report the illegal acts of his supervisors to
investigators, the FBI, and other authorities. Even so, Harmon’s termination
occurred just one month prior to the officer’s termination in Howell, where we
held that it was not clearly established whether a law enforcement officer’s
involvement in an investigation with outside law-enforcement enjoyed
protection under the First Amendment. Accordingly, the same result in Howell
must obtain here. 16 We thus agree with the district court that Evans is entitled
to qualified immunity on Harmon’s First Amendment retaliation claim.
V.
Finally, we address Harmon’s claims under the First Amendment’s
Petition Clause, which “protects ‘the right of the people . . . to petition the
Government for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri,
564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).
16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his
argument that the law regarding his speech was clearly protected at the time of his
termination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however,
given the Defendants the ‘fair warning’ they need.”). However, whether the law was clearly-
established at the time of Harmon’s termination requires us to consider the specific context
of the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define
clearly established law at a high level of generality,’ but rather are to pay close attention to
‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement
officer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so
we follow Howell.
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As best we can tell, Harmon attempts to bring two “petition” claims. 17
The first appears to be a straight-up petition claim based on Evans’s refusal to
hear his grievance; that is, Harmon alleges that Evans’s refusal to hear his
grievance violated his “fundamental” right to petition the government.
Harmon’s second claim appears to be an equal-protection variant and is
similarly based upon Evans’s refusal to hear his grievance. We address each in
turn. 18
Harmon’s first theory fails for the very basic reason that his attempted
grievance involved a matter of private concern. Indeed, “[i]f a public employee
petitions as an employee on a matter of purely private concern, the
employee’s First Amendment interest must give way, as it does in speech
cases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct,
which is a matter of public concern—is not at issue here; rather, the issue
concerns Harmon’s grievance. By its very nature, however, an employee’s
grievance from termination will not ordinarily constitute a matter of public
concern. See id. (“A petition filed with an employer using an internal grievance
procedure in many cases will not seek to communicate to the public or to
advance a political or social point of view beyond the employment context.”);
Gibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel
disputes and management decisions are rarely a matter of public concern.”).
We think the district court said it well:
There is no evidence that Harmon was using the petition appealing
his employment termination as a platform to publicly air his
17 Harmon gears much of his Petition Clause arguments towards Dallas County and
its decision to exclude deputy constables hired before August 19, 2003 from its grievance
system. Because we hold that res judicata bars Harmon’s claims against the County and
Evans in his official capacity, we do not address these arguments.
18 The district court held that Harmon’s Petition Clause claims were not properly
before the court but nevertheless addressed them on the merits. We limit our analysis here
to the merits.
13
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concerns about Evans’s conduct. He, instead, was merely using the
petition to appeal the termination of his employment as any
employee, private or public, would do. In other words, the point of
Harmon’s appeal was not to present concerns about Evans’s
conduct but to seek reinstatement of his employment as deputy
constable with the County.
Harmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim
here is against Evans in his individual capacity—and thus seeks damages from
him personally—underscores our conviction that Harmon’s attempt to grieve
his termination with Evans constituted but a matter of private concern. See
Gibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—
provides significant support for the conclusion that it was not a matter of public
concern.”). Finding no violation of Harmon’s First Amendment right to
petition, we agree with the district court that Evans was entitled to qualified
immunity on this claim.
To succeed on his equal protection claim, Harmon must show that “two
or more classifications of similarly situated persons were treated differently.”
Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012).
Harmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or
a regular practice to not hear grievances of employees, including grievances by
deputy constables.” Thus, Harmon does not allege that Evans treated similarly
situated deputy constables differently; to the contrary, Harmon alleges that
Evans’s regular practice was to refuse grievances all together, and his equal
protection claim fails for that reason. The district court did not err in granting
Evans qualified immunity on this claim.
AFFIRMED.
14
|
(2008)
NOVOSHIP (UK) LIMITED, Cally Shipholdings Inc., Vital Shipping Corporation, and Dainford Navigation Inc., Plaintiffs,
v.
Wilmer RUPERTI, Sea Pioneer Shipping Corporation, and PMI Trading Inc., John Doe (fictitious), and John Doe Inc. (fictitious), Defendants.
No. 07 Civ. 9876(DLC).
United States District Court, S.D. New York.
June 20, 2008.
OPINION AND ORDER
DENISE COTE, District Judge.
On March 19, 2008, a Memorandum Opinion and Order was issued in this action granting the plaintiffs' motion for renewal of an order of attachment pursuant to Supplemental Admiralty Rule B. Novoship (UK) Ltd. v. Ruperti, 545 F.Supp.2d 328 (S.D.N.Y.2008) (the "March 19 Opinion").[1] Defendants have filed a motion for reconsideration of the March 19 Opinion; in connection with the opposition to that motion, plaintiffs filed a cross-motion seeking discovery to identify corporate entities that, plaintiffs allege, the defendants are using to move funds through this District, and leave to amend both their complaint and the order of attachment to reflect the information obtained during such discovery. For the following reasons, defendants' motion for reconsideration is denied, and plaintiffs cross-motion is granted in part.
The necessary factual background is reviewed in the March 19 Opinion, familiarity with which is assumed. See March 19 Opinion at 330-31. That Opinion concluded, in sum, that "the plaintiffs' [breach of] contract claim provides an independent basis for the assertion of admiralty jurisdiction and the issuance of the requested maritime attachment." Id. at 332. Defendants contend that this holding should be reconsidered because the plaintiffs (1) did not carry their burden of establishing a valid prima facie admiralty claim because they did not provide the Court with a choice-of-law analysis, and the Court erroneously placed that burden upon the defendants; and (2) did not adequately plead contract damages in their complaint (or assert a breach of contract claim in the London litigation underlying this attachment action), and thus the order of attachment cannot be premised upon a breach of contract claim, or, if it is so premised, should be reduced in amount to zero.
The standard for a motion for reconsideration is strict, and "reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided," nor may the moving party "advance new facts, issues or arguments not previously presented to the Court." Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y.1999). The decision to grant or deny the motion is within the sound discretion of the district court. See Devlin v. Transp. Commc'n Int'l Union, 175 F.3d 121, 132 (2d Cir.1999).
Defendants' argument regarding the plaintiffs' failure to plead contract damages has not been previously raised, and thus must be rejected.[2] Defendants' argument regarding choice-of-law is also without an adequate basis in the record developed on the prior motion. In short, the March 19 Opinion did not overlook the choice-of-law issue or impose any improper burden upon the defendants. Defendants emphasize that their "very first" submission to the Court in this action raised the choice-of-law issue, and that this argument was incorporated by reference through a footnote in their opposition papers. That footnote incorporates all arguments previously advanced, without specifically identifying the choice-of-law issue.[3] Such a generalized incorporation by reference is insufficient to identify the choice-of-law argument. Thus, the choice-of-law argument pressed by the defendants here was not presented in the defendants' opposition to the motion to renew the attachment and cannot serve as a ground for reconsideration.
In any event, the March 19 Opinion did not overlook the choice-of-law issue, but rather concluded that; "[w]hile it is not clear whether United States law would apply to the interpretation" of the contacts at issue here, both parties' citation to the same caseFWF Inc. v. Detroit Diesel Corp., 494 F.Supp.2d 1342 (S.D.Fla.2007)on the issue of whether a maritime contract imposes an obligation of good faith and fair dealing was "sufficient at this stage for purposes of determining whether plaintiffs have demonstrated that they have a valid prima facie admiralty claim" premised upon a breach of such an obligation. March 19 Opinion at 333 n. 2. Cf. 3Com Corp. v. Banco do Brasil, S.A., 171 F.3d 739, 743 (2d Cir.1999).[4]
In addition, the March 19 Opinion did not place a burden on the defendants to establish which forum's law should be applied to the plaintiffs' claims. Although the March 19 Opinion did state that defendants' citation to In re Worldcom, 456 F.Supp.2d 508, 519 (S.D.N.Y.2006), was in-apposite because defendants had not argued that the law applied in the cited passage of In re Worldcom (i.e., New York State law) also applied here, it concluded that "in any event" plaintiffs had made a sufficient "prima facie showing that a breach of the implied covenant here would be a `breach of the underlying contract.'" March 19 Opinion at 332-33 (citing Harris v. Provident Life & Acc. Ins. Co., 310 F.3d 73, 80 (2d Cir.2002)). Thus, any argument that the March 19 Opinion placed a burden on the defendants to make a showing regarding choice-of-law is erroneous. See also id. at 331-32 (noting that "`the burden [is] on the plaintiff to show that [the] attachment was properly ordered and complied with the requirements of [Supplemental] Rules B and E'" (citing Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 445 n. 5 (2d Cir. 2006))).[5] Defendants' motion for reconsideration is therefore denied.[6]
Plaintiffs' cross-motion alleges that defendants have sought to circumvent the Order of Attachment issued in this action "by moving funds through New York but in a manner to mask the identity of the parties with an interest in those funds." As evidence, plaintiffs cite (1) a verified complaint filed in this District by other plaintiffs on December 5, 2007, which alleged that Sea Pioneer Shipping Corporation (a defendant herein) caused payments due to it to be remitted to other affiliated entitiesall of which are allegedly controlled by defendant Wilmer Ruperti ("Ruperti") "[i]n order to avoid attachments of its assets," and (2) a recent seizure by Bank of America pursuant to the Order of Attachment in this action of a wire transfer between two third-parties that was allegedly made for Ruperti's benefit.[7] Based on this information, plaintiffs seek "leave to take immediate discovery from Defendants with respect to this effort to avoid the attachment so as to properly identify and enable the garnishees to restrain funds in which Defendants have an interest," and leave to amend the complaint and the Order to Attachment to reflect the information thereby discovered.
"Rule B(1) . . . provides that a maritime plaintiff may `attach the defendant's tangible or intangible personal property.' It is difficult to imagine words more broadly inclusive than `tangible or intangible.'" Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263, 276 (2d Cir.2002) (citation omitted). Given the breadth of Rule B, it is recognized that the Rule permits a plaintiff to attach, for example, "debts owed to the defendant . . . even if they have not yet matured or have only partially matured," provided that "the defendant's entitlement to the credit or interest in the debt [is] clear." Id. (quoting Robert M. Jarvis, An Introduction to Maritime Attachment Practice Under Rule B, 20 J. Mar. L. & Com. 521, 530 (Oct.1989)). Accordingly, it has been held that where a transfer of funds between two third-parties is shown to have been made for the benefit of a defendant subject to an order of attachment, the defendant's "property interest in" the transfer may be "sufficient to render it attachable under Rule B." Essar Int'l Ltd. v. Martrade Gulf Logistics, FZCO, No. 07 Civ. 3439(WHP), 2007 WL 2456629, at *2 (S.D.N.Y. Aug.23, 2007). But see Egyptian Navigation Co. v. Baker Investments Corp., No. 08 Civ. 2080(SHS), 2008 WL 1748456, at *6 (S.D.N.Y. Apr.14, 2008) (granting motion to vacate attachment where defendant assigned all rights to payment at issue to a third-party).
It follows from these principles that appropriate discovery may enable the plaintiffs to show that funds transfers are passing through this District in the names of non-parties that should be subject to the Order of Attachment entered in this action. Thus, plaintiffs' request for leave to take discovery is granted. Such discovery shall be conducted on or before August 29, 2008.[8] Based upon the information thereby obtained, plaintiffs may make a renewed motion to amend the complaint and Order of Attachment. An Order issued concurrently with this Opinion will set a schedule for briefing such a motion. If leave to amend is granted and funds belonging to the newly joined parties are ultimately restrained, such party "shall be entitled to a prompt hearing at which the plaintiff shall be required to show why the arrest or attachment should not be vacated." Fed.R.Civ.P. Supp. R. E(4)(f).
CONCLUSION
Defendants' motion for reconsideration, filed on April 2, 2008, is denied, Plaintiffs' cross-motion, filed on April 17, 2008, is granted insofar as it seeks leave to take discovery, and denied without prejudice insofar as it seeks leave to amend the complaint and the Order of Attachment.
SO ORDERED:
NOTES
[1] The attachment originally issued on November 7, 2007, but was stayed by an Order of December 17. Novoship, 545 F.Supp.2d at 330-31.
[2] The defendants' related request that the amount encompassed by the attachment be reduced to zero is thus also rejected. It should also be noted that the defendants' assertions regarding the allegations contained in the pleadings filed in the London litigation to which defendants claim they did not have access at the time their opposition to the renewal motion was fileddo not alter this analysis. Defendants do not appear to argue that the failure to include a breach of contract claim in the London litigation itself requires reconsideration of the March 19 Opinion. Rather, the claims regarding the London pleadings are raised to emphasize the defendants' principal argument: that the complaint filed in this action does not plead contract damages. This argument, however, was fully available to the defendants at the time their opposition was filed, but was not raised at that time.
[3] Footnote six on page seventeen of their initial motion to vacate, filed on December 7, 2007, notes that "should this case proceed, choice of law is of paramount importance in determining how damages might be assessed here," and further states that the plaintiffs have "fail[ed] to assert choice of law" in their complaint.
[4] See also Ronda Ship Mgmt. Inc. v. Doha Asian Games Organising Comm., 511 F.Supp.2d 399, 404 (S.D.N.Y.2007) ("Given that the Court's inquiry focuses on whether plaintiff has alleged a claim cognizable in admiralty, and not the merits of plaintiff's claim, it is unnecessary for the Court to determine which law applies to the ultimate merits of plaintiff's claim.").
[5] Thus, while it is true that "[t]he existence vel non of a valid maritime claim for purposes of a Rule B writ of attachment turns upon the applicable substantive law," Sonito Shipping Co., Ltd. v. Sun United Maritime Ltd., 478 F.Supp.2d 532, 536-37 (S.D.N.Y.2007) (Haight, J.), this Court concluded in the March 19 Opinion that the parties' apparent agreement that the contracts at issue here created implied duties of good faith and fair dealing, along with the plaintiffs' prima facie demonstration that breach of such implied duties could form the basis for a breach of contract claim, were sufficient at this stage.
[6] This conclusion is not altered by consideration of the defendants' letter of June 5, 2008, which refers the Court to a recent filing in the London litigation. By letter dated June 17, 2008, plaintiffs' counsel provides a declaration from the attorney who prepared the document identified by the defendants that describes the context in which it was prepared and filed. The description provided by the plaintiffs effectively rebuts the defendants' claim that the London filing is a "judicial admission by Plaintiffs" that is "fatal" to the plaintiffs' claim of maritime contract jurisdiction.
[7] In sum, plaintiffs allege that Ruperti was directing an entity that owed him a debt to pay off that debt by transferring funds directly to one of his creditors, thereby avoiding having a transfer of funds with his name on it travel through this District. The transfer was seized despite this arrangement because the documentation accompanying the transfer made reference to Ruperti.
[8] While defendants concede that "discovery procedures under the Federal Rules of Civil Procedure are part of this proceeding," they raise the concern that "it is not clear what discovery Plaintiffs contemplate," because discovery requests have not yet been served. It is sufficient to note at this stage that, in accordance with the Local Rules of the Southern District of New York and the Individual Practices of this Court, the parties are required to (1) engage in a meet-and-confer process to attempt to resolve any discovery disputesincluding disputes regarding the proper scope of the discovery permitted by this Opinion-and, (2) if such process fails to resolve those disputes, to raise them promptly with the Court in a letter no longer than two pages.
|
144 F.3d 995
158 L.R.R.M. (BNA) 2420, 135 Lab.Cas. P 10,171
APX INTERNATIONAL, formerly Aero Detroit, Inc., Petitioner(96-6271; 97-5954)/ Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner(96-6520; 97-5993),International Union, United Automobile, Aerospace &Agricultural Implement Workers of America (UAW),Intervenor.INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW),Petitioner (96-6420),APX International, formerly Aero Detroit, Inc., Intervenor,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 96-6271, 96-6420, 96-6520, 97-5954 and 97-5993.
United States Court of Appeals,Sixth Circuit.
Argued Jan. 27, 1998.Decided May 29, 1998.
Paul H. Townsend, Jr. (argued and briefed), John F. Birmingham, Jr. (briefed), Dykema Gossett, Detroit, MI, for APX International, formerly Aero Detroit, Inc.
Linda S. Neighborgall (argued and briefed), Aileen A. Armstrong (briefed), Deputy Associate General Counsel, Linda Dreeben (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for National Labor Relations Board.
Betsey A. Engel (argued and briefed), Associate General Counsel, International Union, UAW, Detroit, MI, for International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW).
Before: WELLFORD, RYAN, and SILER, Circuit Judges.
OPINION
WELLFORD, Circuit Judge.
1
Petitioner, APX International ("APX"), formerly known as Aero Detroit (hereinafter referred to as "Aero"), designs and builds models and prototypes of automobiles. It has fifteen plants, four of which have collective bargaining agreements with unions. In 1991, Aero was awarded a contract by the Chrysler Corporation ("Chrysler") to manufacture fiberglass body panels for the new Dodge Viper. Initially, Aero planned to produce the Viper panels at its Lincoln Park plant, and proposed accepting new employees hired for the project to an existing bargaining unit there already represented by the United Automobile Aerospace and Agricultural Implement Workers of America ("UAW" or "the Union"). After negotiations, however, the unit members rejected the proposed contract. Consequently, Aero moved the project to a new another facility in Madison Heights, which had no union, and began production there with 116 employees. By October of 1993, the employment reached its peak of 207.
2
In the meantime, during January of 1993, some Aero employees began discussing the utility of forming or joining a union. In August, Tom Mansfield and his co-worker, John Sarver, initiated a campaign to join the UAW with aid from UAW representative Baxter Marino. They distributed literature, encouraged Union support, and openly identified themselves as UAW supporters by wearing buttons and caps bearing the UAW logo or letters. By October 19, the Union had collected 160 signed authorization cards which were submitted to the NLRB.
3
On January 6, 1994, after much turmoil within the plant, an election was held. The results were not dispositive; the vote was 79 to 75 in favor of the Union, but there were 14 challenged and unopened ballots. Aero and the Union both filed objections to conduct affecting the election.
4
The Union filed three charges against Aero concerning this January 6 election, alleging that Aero violated § 8(a)(1), (2), and (3) of the National Labor Relations Act, 29 U.S.C. § 158, et seq. ("the Act"), which were consolidated for hearing. We summarize the facts surrounding the four main Union allegations.
I. FACTS SURROUNDING THE CHARGES
A. The Huddleston Discharge
5
Gary Huddleston was hired by Aero in December of 1992. In November of 1993, he sought to take three days off to go on a family reunion/deer hunting party.1 Huddleston claimed that he had notified Aero at the time he was hired that he would need the time off, and that he then was told that it would not be a problem. Huddleston claimed also that he explained the trip's purpose to his first supervisor, John Moore, who did not object to his proposed leave in November. Huddleston further stated that he renewed his request with his second supervisor, John Torres, who allegedly lost Huddleston's first completed "request for leave" form. Huddleston allegedly submitted another form.
6
In October, Huddleston had a new supervisor, Mike Davitt, who had been a Union supporter prior to his promotion to a management position. Huddleston stated that Davitt indicated no objection when Huddleston gave him a handwritten note, but Davitt required a written leave request. On November 1, Huddleston completed the form, but two days before he was to take his leave, Davitt denied Huddleston's request. Huddleston told Davitt he would take his leave anyway; Davitt stated that if he did, he would be treated as voluntary quit2 and could not come back to work. Davitt claims that he was informed of Huddleston's request for leave for the first time on November 1, and that another employee in the same department also had previously tendered a request for leave for the same time period and was approved.
7
A determined Huddleston left work on November 12 and told his co-workers he would see them when he returned from his trip. He missed work on November 13, 15, and 16, and returned to work on Wednesday, November 17. When Huddleston reported to work, Davitt told him that he was discharged as a voluntary quit. Huddleston appealed the decision, and met with Davitt, Hendrickson, and Wagner, urging them not to treat him as a voluntary quit. He pointed out that management knew why he was absent, and that supervisors had approved the leave. Alternatively, he pleaded for a less severe sanction, which he claimed had been applied in other unexcused absence cases. Wagner, who testified that he was unaware that Huddleston was a Union supporter, noted that Huddleston had six unexcused absences and eleven instances of tardiness during his employment, but he left the final decision to Davitt. Davitt upheld the discharge as a voluntary quit. The Union filed a complaint based on Huddleston's discharge, claiming that it was motivated by Aero's anti-union animus.
B. Unlawful Threats and Interrogation
8
The Union alleged that Aero representatives made numerous unlawful statements and unlawfully inquired about Union support to employees at the plant, in violation of § 8(a)(1) of the Act. In particular, the Union cited about five instances where Aero supervisors alleged that Union representation might shut the plant down. The Union also claimed that on two occasions, supervisors asked why supporters believed that such representation was helpful or necessary. Also, supervisor Dave Doran allegedly told a supporter that if the supporter worked in his department, he would "rip that [UAW] shirt right off [his] back." The Union claimed that these improper remarks unlawfully tainted the election.
9
C. The Continuous Improvement Team (the "CIT")
10
In September of 1993, during the Union's campaign, Plant Manager Buck Hendrickson called Mansfield to his office to discuss forming a Continuous Improvement Team ("CIT") as a way to address employee concerns and to improve conditions in the workplace without the intervention of a "third party." After further discussions, Hendrickson appointed Mansfield and ten other employees to the CIT. Hendrickson and Research & Development Manager John Moore were the self-appointed co-chairmen of the CIT. A memo was circulated to introduce the CIT to the workforce and to explain that the purpose of the program was to elicit employees' suggestions to "find more productive ways to do business." The CIT held meetings on company time, and the participants were given extra time off (but no extra pay) for their efforts. The minutes of the meetings show that various topics were addressed, including improving working conditions (providing clocks and a coat rack in the break room, organizing a phone message system, etc.), improving morale, and improving employee and management relations. By the end of February or March, 1994, however, the CIT lost momentum and faded out of existence due to employee lack of interest. In its complaint, the Union alleged that the formation of the CIT violated § 8(a)(1) and (2) of the Act.
D. Layoff of Twenty-Three Employees
11
The Union filed its representation petition on October 6, 1993, and a representation hearing followed on November 15. At the hearing, Aero moved to postpone the election for three months, asserting that the size of the workforce was temporarily inflated, but would lessen substantially over the next ninety days either by attrition or layoffs. Aero's CEO, Ralph Miller, however, stated at the hearing that he was "confident that there will be few, if any, layoffs." The Union Regional Director determined that there was no sound reason for postponing the election which was scheduled for January 6, 1994.
12
Notwithstanding the assurances of Miller and other management officials that there would likely be few significant layoffs, Aero permanently laid off twenty-three employees on December 17, 1993. Miller maintained that the number of employees at the plant at that time was far beyond the number originally anticipated due to serious technological problems. Particularly, Aero attempted to raise the price originally quoted to Chrysler from $1,951 to $6,500 per set of panels, but Chrysler insisted that it would pay no more that $3,250. To meet Chrysler's demand, Aero contracted with another company for help. Miller claimed that efficiencies were later introduced which decreased manpower needs and, therefore, costs of production. As a result, Miller concluded that the employee force should be reduced to 180 by mid-December and 150 by mid-March. Therefore, layoffs became necessary after November. In its complaint, the Union claimed that the twenty-three employees were laid off because of their Union support and in order to chill support for the Union in violation of § 8(a)(1) and (3) of the Act.
II. THE BOARD'S DECISION
13
After a hearing on October 17, 1995, the administrative law judge ("ALJ") issued an opinion finding in favor of the Union on all of the charges referred to above. She ordered Aero to cease and desist from further violating the Act, and also ordered Aero to reinstate Huddleston with backpay, and to make whole the twenty-three laid off employees for any loss of earnings and other benefits to the date that Aero can demonstrate that they would have been discharged for legitimate business reasons. Aero also was required to disestablish the already defunct CIT. In addition, the ALJ issued a bargaining order, "such bargaining to be retroactive to October 19, 1993, the date on which the UAW attained majority support among [Aero's] employees in an appropriate unit."
14
Aero appealed the ALJ's decision to the Board, which upheld most of the ALJ's rulings but reversed its finding that the mass layoff was unlawful. In an opinion dated August 27, 1996, the Board found that the layoff did not violate the Act because there was insufficient evidence to contradict Aero's position that the layoffs were due to pressure from Chrysler and were not motivated by anti-union animus. The Board pointed out that the reduction in workforce was necessary due to a decrease in the metal scrap rate resulting from a more efficient production system.
15
The Board amended the ALJ's ordered remedy accordingly, but agreed with the ALJ that a bargaining order was necessary to remedy the other violations of the Act. Aero now appeals, claiming that the Board erred with respect to the findings regarding the Huddleston discharge, the unlawful threats and interrogations, the CIT, and the Board's order that Aero bargain with the Union. The Union cross-appeals, arguing that the Board erred in reversing the ALJ's decision regarding the twenty-three layoffs. Aero filed a brief as an intervenor in the cross-appeal, arguing that the Board's decision regarding the twenty-three layoffs was supported by substantial evidence.
16
In its August, 1996 order, the Board severed the "representation" part of the case and remanded it to the Regional Director with instructions to count the ballots of Biggs, Horecki, Zabik, Williams, and Huddleston, and to issue a revised tally. Thereafter, the Director first opened all but the Huddleston ballot, and all four were against the Union, making the vote exactly even at 79 to 79.3 One week later, the Director opened and counted the Huddleston ballot which tipped the scale in favor of the Union by one vote. On October 1, 1996, the Regional Director certified the Union as the collective bargaining representative of the designated unit. Aero, however, refused to recognize the Union, claiming that the Board's certification was invalid and challenging Huddleston's ballot. Consequently, the Union filed another charge against Aero, claiming that Aero's refusal to bargain violated §§ 8(a)(1) and (5) of the Act. In its answer, Aero denied that the Union was properly certified by the Board. On July 10, 1997, the Board granted the Union's motion for summary judgment, essentially based upon the propriety of Huddleston's vote. The appeals related to both the August, 1996 order and the July, 1997 order have all been consolidated herein.
III. STANDARD OF REVIEW
17
We review the Board's decision in this appeal to determine whether it was supported by substantial evidence. Lion Uniform v. NLRB, 905 F.2d 120 (6th Cir.1990) (determining that courts of appeals should apply the "substantial evidence" standard to the final agency decisions). "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 29 U.S.C. § 160(e). The Supreme Court has stated: "The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In determining whether the Board's decision was supported by substantial evidence, we must decide whether the Board's conclusions were reasonable in light of the facts. We "may not substitute [our] judgment on the question of whether the inference drawn is the correct one or whether a different inference would be better supported; rather, this court is limited to the determination of reasonableness--not rightness." NLRB v. Kentucky May Coal Co., Inc., 89 F.3d 1235, 1243 (6th Cir.1996) (quoting NLRB v. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972)).
18
The Board's issuance of a bargaining order is reviewed for an abuse of discretion. Id.; Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1300 (6th Cir.1988).
IV. ANALYSIS
19
Initially, we consider whether substantial evidence supports the Board's decision that Huddleston's discharge was unlawful. It is an unfair labor practice for an employer, "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization[.]" 29 U.S.C. § 158(a)(3). The Board has the initial burden of showing that an unfair labor practice was committed. If the Board carries its burden, the employer must then show by a preponderance of the evidence that it would have taken the same action even if the employees had not engaged in the protected activity. NLRB v. Kentucky May Coal, 89 F.3d 1235, 1241 (6th Cir.1996). If substantial evidence supports the Board's finding that the employee's union activity was a motivating factor in the employer's adverse action, that action is unlawful unless the record as a whole supports the employer's affirmative defense that it would have taken the same action in the absence of the employee's union activity. Id.
20
The Board in this case found that Huddleston's discharge was motivated by his union activity because (1) Huddleston was an open supporter of the Union; (2) he received threats of plant closure; and (3) because of the "abundant" evidence of anti-union animus on the part of Aero. The Board further found that Aero could not sustain its burden of showing that it would have terminated Huddleston even in the absence of his union activities. The Board found it significant that Aero had never before applied the "voluntary quit" rule to an employee who intended to return to work.
21
Aero argues that the Board's decision was not supported by substantial evidence, but rather was based essentially on Huddleston's uncorroborated testimony. Specifically, although Huddleston testified that he had requested and been granted the time off, no other person corroborated that story. On the contrary, Davitt testified that he denied Huddleston's request because another employee, Matt Nezich, requested leave for the same days, and he allowed Nezich to take off. Also, Torres took issue with Huddleston's version of the events relating to his request for leave.
22
Aero argues that there is no evidence that any supervisor recognized Huddleston as a Union supporter. Though Huddleston testified about several occasions where supervisors, including Davitt, made comments in his presence that Union representation would close the plant, the supervisors denied that such encounters ever took place.4 The only objective evidence of Huddleston's support for the Union was his signature on an authorization card and evidence that he attended one meeting in October, 1993. Aero points out that Nezich, who obtained the leave sought by Huddleston, was also at the October meeting, indicating that he was as much a Union supporter as Huddleston. Aero would therefore not have based its decision to fire Huddleston on the fact that he was a Union supporter.
23
Furthermore, Aero cites to the many instances where Huddleston's credibility was called into question. For example, Huddleston represented on his employment application that he began working with Aero in December, 1992. Actually, he worked for Aero in another division, Autodynamics, from which he was discharged during his probationary period. At first, he claimed he did not know that Autodynamics and Aero were part of the same company, but when he was confronted with documents, he admitted that he had falsely represented that he had never before worked for Aero in his employment application. In addition, Huddleston testified that he had never been disciplined for being absent before this incident, but, in fact, he had been warned many times. Though Huddleston had been repeatedly written up about attendance problems in the past, he claimed that he had forgotten about all of those incidents.
24
Finally, Aero claims that the Board erred in giving weight to the fact that no other employee had been discharged under the voluntary quit rule. Aero claims that the Board's reliance on that fact placed on Aero an unfair burden because no other employee has previously done what Huddleston did--he defied his superior in announcing his intention to be AWOL--and such conduct amounted to blatant insubordination. Rather, under these unique circumstances, Aero claims that it had a legitimate basis for firing Huddleston, who had been a less-than-ideal employee throughout his tenure.
25
In addressing this issue, the ALJ referred only to Huddleston's statements regarding requests for leave to go on the hunting trip; the ALJ noted no corroboration from others. Torres denied telling Huddleston he could have the leave, but added that Huddleston "defiantly told him that he would take the time off." Torres testified that he did not know that Huddleston was a Union supporter. The ALJ noted Huddleston's poor attendance and tardy record, but characterized the employer's action of discharge as "invoking an inappropriate excuse." Huddleston, according to the ALJ, "handed respondent a convenient excuse to fire him," but she found Aero's true motivation was to "be rid of an outspoken union proponent." The ALJ added that "other sanctions" would have been more appropriate than discharge. The ALJ literally brushed off Huddleston's unquestioned credibility problems, and found that Aero had applied its voluntary quit rule "in an arbitrary manner."
26
If we assume, for purposes of discussion, that the Union made out a case that Huddleston's Union activity was a motivating factor in Aero's action regarding unauthorized vacation time, we look to the totality of the circumstances in reviewing whether substantial evidence supports Aero's defense that it would have taken this action in the absence of such pro-union interest by Huddleston. Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981). Huddleston had a poor employment record and was warned of potential further discipline for persistent lateness and tardiness by supervisor Wagner, who was unaware of Huddleston's Union proclivity, less than a month before his termination. This issue is a difficult one, but we find that substantial evidence does not support the conclusion that Aero would not have fired Huddleston in the absence of his Union support. There is no evidence that Huddleston was a leader among his ranks, nor was there evidence that his Union support was "outspoken" or particularly advantageous to the Union. Rather, the evidence strongly supports the contrary conclusion that Aero was not concerned about Huddleston's Union activity, but would have fired him in any event for his defiance toward his supervisors.
27
A principal problem that we have with the Board's analysis is its ignoring of Huddleston's obvious credibility problems. In arguing that he should have been reinstated, Huddleston insisted to the Aero supervisors that his "record was clean," and so affirmed in an affidavit filed with the Board. His record, however, was far from clean, and this was an additional, independent basis for not reinstating Huddleston. His lame excuse was that he "just forgot about [all] these disciplines" in which he had been involved, one as late as October, 1993. Huddleston's problem about credibility was also clearly evident in his misrepresentation about prior employment with Aero and the discharge during his probationary period.
28
The ALJ was disturbed because "sanctions other than discharge ... were better tailored to Huddleston's circumstances." The ALJ, however, gave little weight to the clear authority of the company rule. The ALJ felt the rule was applied to Huddleston in an "arbitrary and disparate manner," despite his leaving on an unearned vacation in the face of a very plain warning by this supervisor of the consequences.
29
The Board points to one other occasion when a discharged employee "was reinstated after requesting his job back." We do not, however, construe this to be a factor to be held against Aero. The record is silent about the circumstances of such employee's absence or absences, and it is silent about his prior length of service as well as his job performance, and whether or not his immediate supervisors recommended that he be rehired. We agree with Aero that Huddleston's actions were unprecedented, and the Board's consideration of Aero's actions in other situations was inapposite. This was a first in Aero history.
30
We do not require that the examiner's [ALJ's] findings be given more weight than in reason and in the light of judicial experience they deserve ... The findings of the examiner [ALJ] are to be considered along with the consistency and inherent probability of testimony.
31
Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
32
Under the totality of circumstances, we reach a firm and definite conclusion, after examining all of the evidence, that Huddleston would have been terminated under the applicable company rule even if Huddleston had not engaged in protected activity. Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1179 (6th Cir.1985). We think it unreasonable for the Board to penalize Aero for following its announced rule, known to Huddleston, simply because the Board viewed this sanction as inappropriate.
33
Finding that there was insubstantial evidence in the record as a whole for the Board to have rejected Aero's position that it would have discharged Huddleston for his "in your face" conduct despite warnings as to its consequence, we reverse that determination. The effect of our ruling is substantial, because Huddleston's vote is therefore rejected and is not properly counted. As a result, the election result is a tie vote, and the Union, therefore, would fail absent other circumstances. Because the propriety of the Huddleston discharge is the sole issue raised in the appeal of the Board's July 1997 order, that decision is reversed, and the bargaining order in that case should be set aside.5
34
That determination, however, does not end our inquiry, because we must also address the Board's conclusions regarding the propriety of the Board's August, 1996 order concerning the unfair labor charges that are unrelated to the propriety of Huddleston's discharge. Specifically, the Board found that Aero had committed unfair labor practices by forming the CIT and by making threats and interrogating Aero employees prior to the election. In addition, the Board found that Aero did not commit an unfair labor practice in laying off twenty-three employees in December of 1993.
35
We agree that the thirteen-member CIT was a labor organization within the meaning of the Act, and that Aero dominated that organization in violation of § 8(a)(2) and (1) of the Act. The effect of our determination, however, should be the subject of a remand in this case. In essence, the violation is a mere technical one in light of the undisputed fact that the CIT has been defunct for several years and Aero has made no attempt to revive it. The Board considered this violation in fashioning its remedies, and it particularly noted the violation as a factor contributing to its decision to issue a bargaining order in this case.
36
With respect to the claim that Aero unlawfully threatened/interrogated employees, the Board rejected the ALJ's characterization of the § 8(a)(1) violations to involve threats of plant closure to "groups of employees, not only by supervisors but by the highest levels of management." It concluded, however, that one such threat by Plant Manager Hendrickson was established, because he allegedly called employee Mansfield to his office and inquired about why he felt that a "third party," i.e., the Union, was necessary. Also, the Board found specifically that threats made to Huddleston violated the Act. We reluctantly affirm the Board's findings in this regard.
37
Further, we find that substantial evidence supports the conclusion that Aero had a legitimate business justification for laying off the twenty-three employees. "In a case involving layoffs, ... the employer must show by a preponderance of the evidence that the employees would have been laid-off even if they had not engaged in protected activity." Birch Run Welding, 761 F.2d at 1179. The Board explained that Aero would have laid off the twenty-three employees in the absence of the Union activities because the company had a legitimate plan to reduce its scrap rate and, consequently its costs, to be able to meet Chrysler's cost demands. For this reason, and for the reasons explained more fully by the Board in its opinion, we affirm the Board's finding that Aero did not violate the Act in effecting the layoffs.
38
With respect to the bargaining order, we have already set aside the finding that Huddleston was discharged because he was a union adherent. We deem that to be the strongest basis proposed by the ALJ for a bargaining order. The alleged violation of creating the CIT is of little real consequence. The CIT has been effectually disbanded and had little effect on the employees' decision whether or not to vote for an independent union. The lay-off was found by the Board, and we agree, not to be based upon anti-union animus. Finally, the alleged threats of plant closure were, in essence, denied by defendant supervisors involved, with one exception, and Huddleston, the chief accuser in this regard, is a man whose credibility is suspect. In sum, these are neither compelling or persuasive bases for the extraordinary remedy of a bargaining order. The Board has not established "that a bargaining order is the 'only satisfactory remedy.' " Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1301 (6th Cir.1988) (quoting NLRB v. Rexair, Inc., 646 F.2d 249, 251 (6th Cir.1981)); see also NLRB v. Kentucky May Coal Co., 89 F.3d 1235 (6th Cir.1996). We find the requirements of a NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), bargaining order not to be met under the circumstances of this case. See also NLRB v. Taylor Machine Products, Inc., 136 F.3d 507, 519 (6th Cir.1998).
V. CONCLUSION
39
In sum, we REVERSE the Board's finding that the Huddleston discharge was improper for the reasons stated above. That finding requires that we REVERSE the Board's July 1997 order regarding the representation matter, and that we REVERSE and REMAND the Board's August 1996 order for further proceedings in a manner consistent with this opinion. We REVERSE the Board's bargaining order. Finally, we AFFIRM the Board's decision regarding the propriety of the mass layoff.
1
It seems that Huddleston was not actually entitled to a vacation until after he had worked for Aero for one year
2
The company rule provides that "Absence of 3 working days without notifying management--termination of employment (voluntary quit)."
3
The Board sustained challenges to two of the ballots, and the parties stipulated to challenges regarding the other seven
4
Though Huddleston's testimony regarding improper comments made by supervisors in his presence may support an allegation that the supervisor made improper remarks, that evidence is less probative of the issue regarding whether Aero management knew that Huddleston was, in fact, a Union supporter
5
In letter briefs submitted to this court, the parties indicated their agreement that the Huddleston discharge was the determining factor in the appeal of the Board's July, 1997 order
|
Case: 10-10788 Document: 00511564762 Page: 1 Date Filed: 08/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2011
No. 10-10788 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MANUEL AGUILERA-DELEON,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:10-CR-13-1
Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
Manuel Aguilera-DeLeon appeals his 57-month sentence for illegal reentry
after deportation, arguing that the district court committed reversible error by
denying him the right of allocution before pronouncing his sentence, and by
categorizing his previous aggravated assault conviction as an aggravated felony
for deportation purposes. We agree that the right to allocution was improperly
limited. We VACATE his sentence and REMAND for resentencing.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-10788 Document: 00511564762 Page: 2 Date Filed: 08/08/2011
No. 10-10788
STATEMENT OF FACTS
Aguilera-DeLeon was charged with illegal reentry after deportation. He
pled guilty but did not waive his right to appeal. The presentence report
characterized a prior conviction for aggravated assault as a crime of violence and
increased his offense level by 16 levels pursuant to the Sentencing Guidelines.
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2010). A total offense
level of 21 and a criminal history category of III produced a Guidelines
imprisonment range of 46 to 57 months. The presentence report listed factors
that might warrant a sentence outside the Guidelines range and stated that
Aguilera-DeLeon was considered an aggravated felon for deportation purposes
due to his aggravated assault conviction. See 8 U.S.C. § 1101(a)(43).
Aguilera-DeLeon objected to the presentence report, arguing that his
aggravated assault conviction, for which he received a four-year term of deferred
adjudication, was not an aggravated felony under Section 1101(a)(43). The
district court held that the objection was moot because the court was not making
an upward variance based on the purported erroneous characterization.
The district court advised Aguilera-DeLeon that he had the right to
address the court and asked if he had anything he wished to state before he was
sentenced. Aguilera-DeLeon began by mentioning his prior aggravated assault
offense. The district court interrupted him and stated that it would not
“relitigate that offense.” The district court then asked if Aguilera-DeLeon had
anything to offer in mitigation of his sentence. Aguilera-DeLeon pleaded for
forgiveness and explained that he had returned to the United States to be with
his family. The district court accepted the guilty plea and sentenced him at the
top of the Guidelines range. Aguilera-DeLeon timely appealed.
2
Case: 10-10788 Document: 00511564762 Page: 3 Date Filed: 08/08/2011
No. 10-10788
DISCUSSION
Aguilera-DeLeon raises two challenges to his sentence. He contends the
district court erred by denying him the right to allocution and by categorizing a
prior conviction as an aggravated felony for deportation purposes.
The parties agree that Aguilera-DeLeon needed to but failed to object to
the district court’s limiting his opportunity to allocute. Because he did not, the
parties also agree that our review is for plain error. They rely on a decision in
which plain error review was given to a defendant’s failure to object when the
district court neither addressed him nor gave him a chance to allocute. United
States v. Reyna, 358 F.3d 344, 353 (5th Cir. 2004) (en banc). What occurred here
might instead be analyzed as a sua sponte ruling by the district court not to
allow introduction of certain evidence that was being offered, namely, the
explanation the defendant began to make of the events underlying the prior
conviction. We do not pursue that analysis further because of Aguilera-DeLeon’s
concession that this is a matter for plain-error analysis.
To establish reversible plain error, Aguilera-DeLeon must show that the
district court committed a “clear or obvious” error that affected both his
substantial rights and “the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006)
(quotation marks and citation omitted).
Aguilera-DeLeon did object to the allegedly erroneous characterization of
his aggravated assault conviction as a crime of violence. Our review of that issue
is for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 765 (5th
Cir. 2008).
3
Case: 10-10788 Document: 00511564762 Page: 4 Date Filed: 08/08/2011
No. 10-10788
I. Right to Allocution
As an initial matter, we must decide whether the substance of Aguilera-
DeLeon’s reply brief is properly before this court. The government filed a letter
under Federal Rule of Appellate Procedure 28(j) objecting to supplemental facts
included in the reply brief. Aguilera-DeLeon’s initial brief generally described
what he would have stated to the district court had he been allowed to allocute
on his aggravated assault conviction. The government’s brief argued that
Aguilera-Leon’s description was not specific enough. In the reply brief, Aguilera-
DeLeon addresses that alleged shortcoming by providing details as to the
mitigation testimony he would have given. The government urges us not to
consider these details.
A claim raised for the first time in a reply brief will generally not be
considered. United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006).
Nonetheless, the court has discretion to consider an issue raised for the first
time in a reply brief if it is in response to an issue raised in an appellee’s brief.
United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). Here, because
Aguilera-DeLeon raised no new claims but only provided detail in response to
the government’s assertion that his factual explanation was insufficient, we will
consider the contents of the reply brief.
Aguilera-DeLeon contends that the district court violated his right to
allocution by interrupting him and forbidding him to speak about mitigating
circumstances that surrounded his aggravated assault conviction. Federal Rule
of Criminal Procedure 32 requires the district court to “address the defendant
personally in order to permit the defendant to speak or present any information
to mitigate the sentence” before imposing sentence. Fed. R. Crim. P.
4
Case: 10-10788 Document: 00511564762 Page: 5 Date Filed: 08/08/2011
No. 10-10788
32(i)(4)(A)(ii) (emphasis added). The district court must apply Rule 32 “quite
literally” and “make a personal inquiry directed to the defendant.” United States
v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (quotation marks and citations
omitted).
What we are reviewing is an allocution in which the mitigation testimony
being offered was limited by the district court. The following exchange occurred:
AGUILERA: When my wife called 911 and the police went to
my house--
COURT: I’m not going to relitigate that offense. I’m
asking you if you have anything which you wish
to state to the court in the way of mitigation of
sentence.
AGUILERA: I would just like to say forgive me and please give
me the least amount of time so that I can be back
with my family, hopefully here in the United
States, so that I can --I’m doing this for my family
and my children.
Thank you.
The claimed error is that the district court prohibited Aguilera-DeLeon
from describing his aggravated assault conviction, calling it “the one incident
that had the most pernicious effect on his sentence.” The government argues
that the district court was not seeking to stop Aguilera-DeLeon from discussing
the facts of the prior incident but was just clarifying the proper purpose of
allocution. The government’s characterization may not be frivolous, but it is not
the most obvious interpretation. We conclude that Aguilera-DeLeon would have
understood that he was being told not to talk about that prior offense. That was
5
Case: 10-10788 Document: 00511564762 Page: 6 Date Filed: 08/08/2011
No. 10-10788
error. Aguilera-DeLeon was to be given the opportunity to present any
information to mitigate the sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii).
We are to presume that the error affected substantial rights unless the
defendant was sentenced at the bottom of the Guidelines range. United States
v. Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009). Because Aguilera-DeLeon was
sentenced at the top of the range, his substantial rights were affected. Id.
The final inquiry is whether the error affects the fairness, integrity, or
public reputation of judicial proceedings before we exercise discretion to correct
the error. Id. at 604-05. The district court initially allowed Aguilera-DeLeon an
opportunity to speak but then interrupted and specifically disallowed testimony
relating to his underlying assault conviction. Although there was some evidence
in the record as to the unusual nature of Aguilera-DeLeon’s aggravated assault
offense and that his wife had forgiven him, he was not allowed to explain to the
court in his own words these facts and others he believed could have produced
a sentence at the lower end of the Guidelines.
The rules of procedure grant the right to offer any information, yet in this
case the court instructed the defendant not to discuss the central point he
wished to address. We conclude that this kind of interference with the right of
allocution is a matter affecting the public reputation of the court.
Aguilera-DeLeon’s right to allocution was sufficiently limited to require
that he be resentenced after being given a full opportunity to allocute.
II. Presentence Report
The presentence report listed factors that might warrant a sentence
outside the advisory Guidelines range. It stated that Aguilera-DeLeon was
considered an aggravated felon for deportation purposes due to his aggravated
6
Case: 10-10788 Document: 00511564762 Page: 7 Date Filed: 08/08/2011
No. 10-10788
assault conviction. See 8 U.S.C. § 1101(a)(43). Aguilera-DeLeon contended that
characterization was erroneous because an aggravated felony for deportation
purposes requires a sentence to a term of imprisonment for at least one year.
See id. He received a term of deferred adjudication probation and served no
prison time. Consequently, the presentence report was in error.
Aguilera-DeLeon concedes that this error had no effect on the Guidelines
range, but asserts that it affected the sentencing recommendation. He argues
that a downward departure is permitted under the Guidelines where the
applicable offense level substantially overstates the seriousness of a prior
conviction. See U.S. Sentencing Guidelines Manual § 2L1.2(b) cmt. n.7 (2010).
He maintains that the error “might also hurt” him later because the presentence
report could be used in a future immigration case and impact subsequent
determinations by this court.
The record does not provide a clear indication as to the extent this error
impacted the district court’s sentencing decision. The district court overruled
the objection and stated that it was not going to impose an upward variance and
therefore the issue was moot. Because there will be a resentencing, the
presentence report should be amended to remove the erroneous characterization
to avoid a future issue for appeal.
Aguilera-DeLeon’s sentence is VACATED, and the case is REMANDED
for resentencing.
7
|
10-1031-ag
Chen v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 12th day of January, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_______________________________________
XIU QIN HUANG v. HOLDER,1 08-5530-ag
A077 958 016
_______________________________________
YAO LING WANG, XIAO GAO v. HOLDER, 10-291-ag
A088 378 231
A088 378 232
_______________________________________
XUE QIN LIN v. U.S. DEP’T OF JUSTICE,
ERIC H. HOLDER, JR., 10-321-ag
A099 083 219
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted
as respondent where necessary.
09262011-1-28
ZHONG LIN JIANG v. HOLDER, 10-460-ag
A099 697 058
_______________________________________
YUE JIN LIU v. HOLDER, 10-843-ag
A088 530 507
_______________________________________
QIN LIN v. HOLDER, 10-923-ag
A088 377 936
_______________________________________
YING WANG v. HOLDER, 10-947-ag
A088 378 141
_______________________________________
JIAN XIN GAO v. HOLDER, 10-1022-ag
A089 253 260
_______________________________________
XIU QIN CHEN v. HOLDER, 10-1031-ag
A098 480 124
_______________________________________
XIAO JING XIA, CHANG GUANG DONG
v. HOLDER, 10-1036-ag
A098 973 227
A098 902 360
_______________________________________
YIN YING CAO v. HOLDER, 10-1171-ag
A099 927 142
_______________________________________
MEI RU LIN v. HOLDER, 10-1268-ag
A098 279 231
___________________________
XIU FANG CHEN, A.K.A. JIN FANG CHEN
v. HOLDER, 10-1291-ag
A088 380 456
_______________________________________
09262011-1-28 -2-
MEI ZHU LIN v. HOLDER, 10-1292-ag
A093 396 857
_______________________________________
ZHU CHAO WANG v. HOLDER, 10-1293-ag
A089 253 373
_______________________________________
QIN PING LIN, FEI GUAN v. HOLDER, 10-1422-ag
A090 347 257
A090 347 258
_______________________________________
LIN FEI XIE v. HOLDER, 10-1424-ag
A099 683 978
_______________________________________
AI QIN SHI, A.K.A. XI LEI YANG, YONG
JIE LIU v. HOLDER, 10-1837-ag
A089 252 403
A089 252 404
_______________________________________
XIU JIANG HUANG v. HOLDER, 10-1895-ag
A088 524 966
_______________________________________
YU PING BAO v. HOLDER, 10-1902-ag (L);
A098 419 779 11-843-ag (Con)
_______________________________________
YONG CHEN v. HOLDER, 10-1998-ag
A070 898 117
_______________________________________
XUE M. ZHENG v. HOLDER, 10-2013-ag
A088 530 523
_______________________________________
XIAODAN XU v. HOLDER, 10-2249-ag
A099 424 976
_______________________________________
09262011-1-28 -3-
QIAO RONG LIN v. HOLDER, 10-2400-ag
A099 927 241
_______________________________________
SAIHU WANG v. HOLDER, 10-2656-ag
A096 808 755
_______________________________________
JIANDAN WU, ZHIXIANG CHENG v. HOLDER, 10-2797-ag
A088 552 425
A099 186 862
_______________________________________
QIU YUN NI v. HOLDER 10-3336-ag
A089 253 069
_______________________________________
UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petitions for review
are DENIED.
Each of these petitions challenges a decision of the BIA
either affirming the decision of an immigration judge (“IJ”)
denying asylum and related relief or reversing the IJ’s
decision granting relief. Some of the petitioners2 also
challenge decisions of the BIA denying motions to remand or
reopen. The applicable standards of review are well-
2
The Petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
Qin Lin v. Holder, No. 10-923-ag; and Yu Ping Bao v. Holder, Nos.
10-1902-ag (L), 11-843-ag (Con).
09262011-1-28 -4-
established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-
58, 168-69 (2d Cir. 2008).
Petitioners, all natives and citizens of China, sought
relief from removal based on their claims that they fear
persecution because they have had one or more children in
violation of China’s population control program. For largely
the same reasons as this Court set forth in Jian Hui Shao, 546
F.3d 138, we find no error in the agency’s decisions. See id.
at 158-72. While the petitioners in Jian Hui Shao were from
Fujian Province, as are most of the petitioners here, some
petitioners3 are from Zhejiang Province. Regardless, as with
the evidence discussed in Jian Hui Shao, the evidence they
have submitted relating to Zhejiang Province is deficient
either because it does not discuss forced sterilizations or
because it references isolated incidents of persecution of
individuals who are not similarly situated to the petitioners.
See id. at 160-61, 171-72.
3
The petitioners in Xiao Jing Xia, Chang Guang Dong v. Holder,
No. 10-1036-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Saihu Wang
v. Holder, No. 10-2656-ag; and Jiandan Wu, Zhixiang Cheng v.
Holder, No. 10-2797-ag.
09262011-1-28 -5-
Some of the petitioners4 argue that the BIA erred by
improperly conducting de novo review of determinations made by
an IJ. Many of them rely on a decision of the Third Circuit,
ruling, in the context of a claim under the Convention Against
Torture (“CAT”), that, although the BIA may review de novo
conclusions of law as to whether the facts found satisfy a
particular legal standard, it must employ a clear error
standard in reviewing findings of fact, including predictions
of future events. See Kaplun v. Attorney General, 602 F.3d
260 (3d Cir. 2010). Their claims lack merit. The BIA has not
reviewed de novo any of the IJs’ factual findings. Instead,
the BIA has concluded, on de novo review, that the factual
findings do not meet the legal standard of an objectively
reasonable fear of persecution, in these cases, a fear of
forced sterilization or economic persecution. That approach
is entirely consistent with the applicable regulation, 8
C.F.R. § 1003.1(d)(3). See Jian Hui Shao, 546 F.3d at 162-63
(concluding that the BIA did not erroneously conduct de novo
4
The petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag;
Yue Jin Liu v. Holder, No. 10-843-ag; Yin Ying Cao v. Holder, No.
10-1171-ag; Xiu Fang Chen v. Holder, No. 10-1291-ag; Mei Zhu Lin v.
Holder, No. 10-1292-ag; Qin Ping Lin, Fei Guan v. Holder, No. 10-
1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai Qin Shi, Yong
Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v. Holder, No.
10-1895-ag; Yu Ping Bao v. Holder, Nos. 10-1902-ag (L), 11-843-ag
(Con); Yong Chen v. Holder, No. 10-1998-ag; and Qiu Yun Ni v.
Holder, No. 10-3336-ag.
09262011-1-28 -6-
review of the IJ’s factual findings by making “a legal
determination that, while [petitioners’] credible testimony
was sufficient to demonstrate a genuine subjective fear of
future persecution, more was needed to demonstrate the
objective reasonableness of that fear”).
Some of the petitioners5 argue that the BIA failed to give
sufficient consideration to the statement of Jin Fu Chen, who
alleged that he suffered forced sterilization after his return
to China based on the births of his two children in Japan. A
prior panel of this Court has remanded a petition making a
similar claim so that Jin Fu Chen’s statement (which was
submitted to the BIA after a remand) could be considered by
the IJ. See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan. 15,
2010). Since the remand in Zheng, the BIA has repeatedly
concluded that Jin Fu Chen’s statement does not support a
claim of a well-founded fear of persecution. Accordingly, it
is clear that further consideration of the statement in cases
5
The petitioners in Xiu Qin Huang v. Holder, No. 08-5530-ag;
Zhong Lin Jiang v. Holder, No. 10-460-ag; Yue Jin Liu v. Holder,
No. 10-843-ag; Xiao Jing Xia, Chang Guang Dong v. Holder, No. 10-
1036-ag; Yin Ying Cao v. Holder, No. 10-1171-ag; Xiu Fang Chen v.
Holder, No. 10-1291-ag; Mei Zhu Lin v. Holder, No. 10-1292-ag; Zhu
Chao Wang v. Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v.
Holder, No. 10-1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai
Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v.
Holder, No. 10-1895-ag; Yong Chen v. Holder, No. 10-1998-ag; and
Qiao Rong Lin v. Holder, No. 10-2400-ag.
09262011-1-28 -7-
in which the IJ or the BIA failed to consider it would not
change the result. See Shunfu Li v. Mukasey, 529 F.3d 141,
150 (2d Cir. 2008). Furthermore, the agency’s conclusion
concerning the probative force of the statement was not in
error. Similarly, contrary to the argument raised in five of
these cases,6 it would be futile to remand for further
consideration of the statements of Mei Yun Chen and Jiangzhen
Chen, women claiming to have been forcibly sterilized in
Fujian Province for violating the family planning policy with
the birth of their second children in Romania and Japan
respectively, because the BIA has reasonably found that
neither woman is similarly situated to Chinese nationals
returning to China with U.S. citizen children. See id.; see
also Jian Hui Shao, 546 F.3d at 155, 161, 171-72.
We are without jurisdiction to consider two of the
petitions7 to the extent they seek review of the agency’s
pretermission of petitioners’ applications for asylum as
untimely. See 8 U.S.C. § 1158(a)(3).
6
In Yue Jin Liu v. Holder, No. 10-843-ag; Zhu Chao Wang v.
Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v. Holder, 10-1422-
ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; and Yong
Chen v. Holder, No. 10-1998-ag.
7
The petitions in Qin Lin v. Holder, No. 10-923-ag; and Ying
Wang v. Holder, No. 10-947-ag.
09262011-1-28 -8-
In Xiu Qin Huang v. Holder, No. 08-5530-ag, the agency
reasonably relied on 2006 and 2007 U.S. Department of State
reports as opposed to the outdated 1997 Tantou Town Family
Planning Temporary Regulations petitioner submitted. See Jian
Hui Shao, 546 F.3d at 166. Moreover, it does not appear that
the Tantou Town Regulations were material to petitioner’s case
because the record evidence indicated that she resided and
feared persecution in Hunan Town and not Tantou Town.
Although petitioner refers to Tantou Town as her “hometown” in
her brief, unsworn statements in a brief are not evidence.
See Kulhawik v. Holder, 596 F.3d 296, 298 (2d Cir. 2009).
In Zhong Lin Jiang v. Holder, No. 10-460-ag, the BIA did
not err in declining to address the evidence petitioner
submitted for the first time on appeal. See 8 C.F.R. §
1003.1(d)(3)(iv); see also Matter of Fedorenko, 19 I. & N.
Dec. 57, 74 (BIA 1984). Regardless, the evidence submitted
was largely cumulative of the evidence in the record and not
materially distinguishable from the evidence discussed in Jian
Hui Shao. In Qin Lin v. Holder, No. 10-923-ag, the BIA
similarly did not err when it denied petitioner’s motion to
remand based on her failure to establish her prima facie
eligibility for relief. See Li Yong Cao v. U.S. Dep’t of
09262011-1-28 -9-
Justice, 421 F.3d 149, 156 (2d Cir. 2005); see also Jian Hui
Shao, 546 F.3d at 165, 172.
In Ying Wang v. Holder, No. 10-947-ag, the agency
reasonably found speculative the petitioner’s claimed fear
that she would face persecution based on her intent to join an
unregistered church in China. See Jian Xing Huang v. INS, 421
F.3d 125, 129 (2d Cir. 2005); see also Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). In Mei Ru Lin v.
Holder, No. 10-1268-ag, we do not consider petitioner’s
unexhausted past persecution claim. See Foster v. INS, 376
F.3d 75, 78 (2d Cir. 2004). In Zhu Chao Wang v. Holder, No.
10-1293-ag, the IJ did not abuse his discretion by declining
to admit petitioner’s late-filed evidence because that
evidence pre-dated the hearing at which he closed the record.
See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008). In Yu
Ping Bao v. Holder, Nos. 1902-ag (L), 11-843-ag (Con), the BIA
did not err in finding that the petitioner failed to establish
her prima facie eligibility for relief based on her newly
commenced practice of Falun Gong in the United States because
she did not submit evidence that authorities in China are
aware of or likely to become aware of her activities in the
United States. See Hongsheng Leng, 528 F.3d at 143.
09262011-1-28 -10-
Finally, in Jiandan Wu, Zhixiang Cheng v. Holder, No. 10-
2797-ag, petitioners assert the BIA, in ruling that they
failed to satisfy the exceptional and extremely unusual
hardship requirement, erroneously minimized the impact their
removal would have on their U.S. citizen children. The
contention is both ineffective and moot. It is ineffective
because the challenged decision was discretionary and did not
involve a question of law or constitutional claim; our court
is therefore without jurisdiction to review it. See Mendez v.
Holder, 566 F.3d 316, 319-23 (2d Cir. 2009) (citing 8 U.S.C.
§ 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 51 6 F.3d 35,
39 (2d Cir. 2008). The contention is in addition moot because
the agency also dispositively denied cancellation of removal,
which decision petitioners have not challenged (and which we,
in any event, would lack jurisdiction to review because it was
a discretionary decision not involving a question of law or
constitutional claim. See id.).
For the foregoing reasons, these petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in these
petitions is DISMISSED as moot. Any pending request for oral
09262011-1-28 -11-
argument in these petitions is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
09262011-1-28 -12-
|
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re J.S.
October 12, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0261 (Barbour County 17-JA-14) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.P., by counsel Steven B. Nanners, appeals the Circuit Court of
Barbour County’s February 23, 2018, order terminating her parental rights to J.S.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Ashley V. Williams Hunt, filed a response on behalf of the child in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in failing to transport her to the
dispositional hearing.2
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In March of 2017, the DHHR filed a petition alleging that petitioner was addicted to
controlled substances, exposed J.S. to substance abuse, and could not provide a safe environment
for the child. Additionally, petitioner was indicted for one count of burglary, one count of petit
larceny, and one count of conspiracy to commit a felony in Taylor County and one count of
possession with intent to deliver in Barbour County. Petitioner was incarcerated as a result of
those charges.
In June of 2017, the circuit court held an adjudicatory hearing where petitioner testified
to her long history of substance abuse and the circuit court adjudicated her as an abusing parent.
Petitioner moved for a post-adjudicatory improvement period, but her motion was denied. In
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
2
Petitioner does not challenge the termination of her parental rights.
1
September of 2017, the circuit court granted petitioner a post-dispositional improvement period
on the condition that she undergo inpatient substance abuse treatment. Petitioner was discharged
from the substance abuse treatment facility after transporting urine and controlled substances into
the facility.
The circuit court held a dispositional hearing in December of 2017; petitioner did not
appear in person due to her incarceration, but was represented by counsel. The circuit court
found that petitioner admitted to using controlled substances immediately after the circuit court
granted her improvement period. The circuit court further found that petitioner was sentenced to
a one to five year term of incarceration. Further, the circuit court found no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the near future and
that termination was necessary for the welfare of the child. Accordingly, the circuit court
terminated petitioner’s parental rights in its February 23, 2018 order.3 Petitioner now appeals that
order.
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court
finds no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in failing to transport her to the
dispositional hearing. Petitioner asserts that the dispositional hearing is a critical stage in abuse
and neglect proceedings and that her due process rights were violated by the circuit court’s
failure to transport her. However, we find petitioner is entitled to no relief. We have previously
held that
3
J.S.’s father is participating in an improvement period and his parental rights remain
intact. According to the parties, the child was placed with his maternal great grandmother and his
permanency plan is reunification with his father or continuation in his current placement.
2
an incarcerated parent who is a respondent to an abuse and neglect proceeding
must inform the circuit court in which such case is pending that he/she is
incarcerated and request the court’s permission to attend the hearing(s) scheduled
therein. Once the circuit court has been so notified, by the respondent parent
individually or by the respondent parent’s counsel, the determination of whether
to permit the incarcerated parent to attend such hearing(s) rests in the court’s
sound discretion.
In re Stephen Tyler R., 213 W.Va. 725, 584 S.E.2d 581 (2003) (emphasis added). Petitioner does
not cite to a place in the record where she requested to be transported to the dispositional hearing
or where counsel objected to her absence. “‘Our general rule is that nonjurisdictional questions . .
. raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc.,
206 W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).” Noble v. W.Va. Dep’t of Motor
Vehicles, 223 W.Va. 818, 679 S.E.2d 650 (2009). Accordingly, we decline to consider this error
on appeal.
Lastly, because the parties indicate that the proceedings regarding the father are still
ongoing, this Court reminds the circuit court of its duty to establish permanency for the child.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for children
within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
3
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 23, 2018, order is hereby affirmed.
Affirmed.
ISSUED: October 12, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Allen H. Loughry II suspended and therefore not participating.
4
|
355 F.3d 644
MOUNTAIN COMMUNICATIONS, INC., Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.T-Mobile USA, Inc., et al., Intervenors.
No. 02-1255.
United States Court of Appeals, District of Columbia Circuit.
Argued November 18, 2003.
Decided January 16, 2004.
On Petition for Review of an Order of the Federal Communications Commission.
Benjamin J. Aron argued the cause for petitioner. With him on the briefs was Robert H. Schwaninger, Jr.
Charles W. McKee argued the cause for Wireless Carrier intervenors T-Mobile USA, Inc., et al., in support of petitioner. With him on the briefs were Luisa A. Lancetti, Doanne F. Kiechel, Thomas J. Sugrue, David M. Wilson, Laura R. Handman, Jonathan E. Canis, and Douglas I. Brandon.
Stewart A. Block, Counsel, Federal Communications Commission, argued the cause for respondents. On the briefs were R. Hewitt Pate, Assistant Attorney General, U.S. Department of Justice, Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys, John A. Rogovin, General Counsel, Federal Communications Commission, John E. Ingle, Deputy Associate General Counsel, and Laurel R. Bergold, Counsel.
Robert B. McKenna, Jr. argued the cause for intervenors Qwest Communications International Inc., et al., and amici curiae Verizon Telephone Companies. With him on the brief were Michael E. Glover, John M. Goodman, and Edward H. Shakin.
Before: SENTELLE and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge SILBERMAN.
SILBERMAN, Senior Circuit Judge:
1
Mountain Communications, Inc. is a paging carrier that petitions for review of an FCC order dismissing its complaint against Qwest-the local exchange carrier (LEC) serving the areas where Mountain operates-for charging petitioner two types of fees. The dispute between the carriers as to one of the fees evaporated at oral argument, but we hold that the FCC's decision as to the other was arbitrary and capricious.
I.
2
Mountain serves customers in three Colorado local calling areas: Colorado Springs, Walsenburg, and Pueblo. All three local calling areas are within the same Local Access and Transport Area (LATA), and Qwest is the provider of local service within each of those local calling areas. Calls from a Qwest customer to another Qwest customer in the same local calling area are local calls, but if a Qwest customer were to call from one of these local calling areas to another, he or she would incur a toll.
3
Though Mountain services all three local calling areas, it uses a single point of interconnection (POI) with Qwest, as it is entitled by statute. See 47 U.S.C. § 251(c)(2)(B) (providing that LECs must provide interconnection facilities with other carriers "at any technically feasible point within the [incumbent local exchange] carrier's network"); see also 47 C.F.R. § 51.321(a); In re: Developing a Unified Intercarrier Compensation Regime, 16 FCCR 9610, 9650-51 ¶ 112 (2001). The POI is located in Pueblo. Customers in each of the three calling areas have pager numbers associated with their individual local calling areas. It is therefore the paging customer's residence that correlates with the paging number, and a call from a telephone in a local calling area to a pager associated with the same local calling area will seem to the calling party to be a local call. But Mountain's maintenance of a single POI in Pueblo, however, means that every call to a Mountain customer, regardless of the place where the call originated, must pass through Pueblo before Qwest hands it off to Mountain and Mountain delivers it to the pager. Thus, a Colorado Springs resident attempting to page a Colorado Springs Mountain customer dials a Colorado Springs exchange, but the call is first routed to Pueblo before being rerouted to Colorado Springs.
4
Qwest has sought to collect fees from Mountain for these types of calls-calls that originate and terminate in Colorado Springs or Walsenburg but go through Mountain's POI in Pueblo. Qwest considers these calls to be toll calls, but does not charge its own customer-the caller-for placing such calls, perhaps because it lacks the technological ability to do so. See Starpower Communications, LLC v. Verizon South, Inc., 2003 FCC LEXIS 6245, at *23 ¶ 17, 2003 WL 22518057 (Nov. 7, 2003) (attributing such a technological incapacity to Verizon). Instead, Qwest determines whether a customer's call is a toll call by comparing the number of the caller with the number of the person receiving the call. If both are Colorado Springs numbers, Qwest does not charge the customer a toll even if the call is routed to Pueblo and then back to Colorado Springs.
5
Qwest claimed in response to Mountain's complaint before the FCC that it was entitled to charge Mountain for the tolls it was unable to charge its own customers. According to Qwest, Mountain could avoid the toll charges by establishing a POI in each of the three local calling areas-doubtless at an increased cost. Then, if a paging call were placed from a local number to another local number, no toll would be charged to anyone. If, on the other hand, a paging call were made from one local calling area to another, Qwest would transport the call to Mountain's POI-without crossing a local calling area boundary-at which time Mountain would assume responsibility for delivering the call across the local calling areas, presumably at Mountain's expense.
6
Mountain claimed before the FCC that the Commission's regulations, specifically 47 C.F.R. § 51.703(b), which states that LECs such as Qwest "may not assess charges on any other telecommunications carrier for telecommunications traffic that originates on the LEC's network," prohibit Qwest from charging for transmitting calls from Qwest customers to Mountain's POI. Mountain also relied on a recent FCC decision, TSR Wireless, LLC v. U.S. West Communications, Inc., 15 FCCR 11166, 11184 ¶ 31 (2000), which interpreted that regulation and rejected a similar effort on the part of an LEC to charge a paging carrier for transmitting calls to the paging carriers' POI, where the POI and the caller are in the same LATA but different local calling areas.
7
The Commission rejected Mountain's contention. The FCC said that in its TSR decision it had cautioned,
8
nothing prevents [the LEC] from charging its end users for toll calls completed [between local calling areas]. Similarly, section 51.703(b) does not preclude [the paging carrier and the LEC] from entering into wide area calling or reverse billing arrangements whereby [the paging carrier] can `buy down' the cost of such toll calls to make it appear to end users that they have made a local call rather than a toll call.
9
15 FCCR at 11184 ¶ 31 (emphasis added). This buy-down arrangement is the same concept behind conventional 800 numbers, where the called party is billed for the toll ordinarily incurred by the calling party.
10
The Commission concluded that here, by establishing a POI in Pueblo and then asking Qwest for lines to connect local customer numbers in Walsenburg, Colorado Springs, and Pueblo to the POI, Mountain made it appear to Qwest customers that they were making local calls from Colorado Springs numbers to Colorado Springs paging numbers-even though they passed through a Pueblo POI. "By configuring its interconnection arrangement in this manner, Mountain prevents Qwest from charging its customers for what would ordinarily be toll calls to access Mountain's network." Mountain Communications, Inc., Qwest Communications Int'l, Inc., 17 FCCR 15135, 15138 ¶ 5 (2002). The Commission determined that Mountain had obtained a wide area calling service, which is similar to a wide area calling arrangement, and therefore Qwest was entitled to charge Mountain for that service.
II.
11
Although petitioner does not quarrel with the Commission's caveat in TSR-that the regulation does not prohibit a wide area calling arrangement-it insists that this case is no different than TSR; the Commission has simply turned 180 degrees without explanation, and adopted a position at odds with its own regulation and the statutory provision allowing Mountain to make use of one POI within a LATA. We are befuddled at the Commission's efforts to explain away its TSR decision; the facts seem-and are conceded to be-identical, but the results are opposite. In TSR, the FCC prohibited U.S. West, the LEC, from charging TSR, the paging carrier, for the costs of transporting calls from U.S. West customers to TSR's POI.1 In that case, just as in the present situation, the paging carrier served separate local calling areas (Yuma and Flagstaff, Arizona), both of which were within the same LATA and served by the same LEC. TSR used a single POI, and a U.S. West customer wishing to page a TSR customer within the same local calling area would have to place a call that would be routed across local calling area boundaries. US West attempted, as Qwest attempts here, to charge the paging carrier a fee for transporting those calls to the paging carrier's POI. The FCC ruled that such a charge would violate 47 C.F.R. § 51.703(b), because the calls originated on U.S. West's network, and an LEC may not charge another carrier for traffic originating on the LEC's network. See TSR, 15 FCCR at 11176 ¶ 18, 11181 ¶ 25, 11184 ¶ 31.2 The FCC concedes that the facts of TSR are identical to those presented here, but argues that the present network configuration nevertheless may be considered wide area calling, even if the same configuration in TSR was not so considered.
12
The Commission's attempt to stretch the concept of a wide area calling arrangement (essentially an agreement) to a wide area calling "service" is logically inconsistent with its TSR decision.3 The premise, according to the Commission's TSR reasoning, of a wide area calling arrangement is that the LEC can charge a toll call to its customers. In that event the paging carrier has an incentive to "buy down" that charge so that Qwest's customer is not deterred by the toll from making a paging call. Here, for reasons not entirely clear to us, Qwest does not charge its customers for what it regards as a toll call if the originating number and the paging number are in the same local calling area. See generally Starpower Communications, 2003 FCC LEXIS 6245 at *23 ¶ 17, 2003 WL 22518057 (Nov. 7, 2003) (noting that "industry practice among local exchange carriers ... appears to have been that calls are designated as either local or toll by comparing the [phone numbers] of the calling and called parties").4 Accordingly, Mountain has no incentive to enter into a wide area calling arrangement with Qwest. Mountain's system of interconnection provides it no advantages other than those to which, presumably, it is entitled for free.5 The Commission nevertheless chooses to term what Mountain has ordered from Qwest as wide area calling "service," which presto becomes a reasonable facsimile of a wide area calling agreement. The FCC's characterization of Mountain's arrangement as a wide area calling "service,"-sort of a constructive agreement-is rendered even more dubious by the fact that there are no additional services provided by wide area calling. The only difference between wide area calling and traditional telephony is the entity billed for the tolls.
13
Unfortunately for the Commission, the exact same analysis could have been applied in TSR-but was implicitly rejected. Therefore the Commission has, just as Mountain has claimed, changed direction without explanation, indeed without even acknowledging the change.
14
Perhaps more fundamental, by abandoning the concept of a buy-down agreement between the parties and simply designating the service Mountain obtained as a wide area calling service, the Commission seemingly comes into direct conflict with its own regulation. See MCIMetro Access Transmission Servs. v. Bellsouth Telecomms, Inc., 352 F.3d 872 (4th Cir.2003) (holding that 47 C.F.R. § 51.703(b) "unequivocal[ly] prohibit[s] LECs from levying charges for traffic originating on their own networks, and, by its own terms, admits of no exceptions"). In TSR, the Commission had interpreted its regulation 51.703(b), which prohibits LECs from assessing charges on other carriers for delivering traffic originating on the LEC's network, as not applying to a voluntary agreement that a paging carrier enters into with the LEC to compensate the LEC for foregoing its option to charge its customers. In other words, the Commission implicitly construed such an agreement as not a "charge" for telecommunications traffic but rather compensation for a separate benefit. The Commission described "wide area calling" as "a service in which a LEC agrees with an interconnector not to assess toll charges on calls from the LEC's end users to the interconnector's end users, in exchange for which the interconnector pays the LEC a per-minute fee to recover the LEC's toll carriage costs." TSR, 15 FCCR at 11167 n. 6 (emphasis added). But in this case the Commission abandoned that construction, instead allowing Qwest to charge Mountain for the wide area calling service it was deemed to enjoy, though there was no agreement. By shifting its characterization of the exception to § 51.703(b)'s prohibition on charges from an agreement to compensate LECs for a foregone opportunity, to a charge for the telecommunications traffic, the FCC decision appears to run afoul of § 51.703(b)'s prohibition on charges.
15
The Commission, moreover, has not even tried to explain how its position can be reconciled with the statutory provision, 47 U.S.C. § 251(c)(2)(B), which, it will be recalled, obliges an LEC to provide interconnection facilities with any other carrier at a single "technically feasible" POI. Mountain maintains that that statutory provision implicitly precludes an LEC from charging for such an interconnection, and the Commission has not responded to that argument. We do not, therefore, decide whether the Commission could reasonably interpret the statute to allow for such charges.
16
We therefore rather easily conclude that the Commission's decision on this issue is arbitrary and capricious. See generally, e.g., Ramaprakash v. FAA, 346 F.3d 1121, 1124-25 (D.C.Cir.2003).
III.
17
In addition to the charges Qwest has assessed for delivering Qwest-originated calls to Mountain's POI, Qwest has also assessed "transit" charges for the delivery of calls originated by a customer of an entirely different network. If a nonQwest customer wishes to page a Mountain customer, the call is routed to Qwest. Qwest then carries the call on its network-in like manner as if a Qwest customer had placed the call-to Mountain's POI. Mountain then assumes responsibility for delivering the call to the Mountain customer. Qwest incurs costs for switching and routing these calls over the Qwest network, and Qwest charged Mountain for the last of five parts of those expenses-the cost of delivering the call from the Qwest end office switch to Mountain's POI. The FCC allowed Qwest to charge for this service, but indicated that Mountain could seek reimbursement from the originating carrier for whatever charges it paid to Qwest. See Mountain Communications, 17 FCCR at 15137 n. 13. Mountain's petition challenged this FCC decision as well, claiming that the charge is arbitrary and capricious because it does not follow the standard practice of charging the cost of calls to the network of the party initiating the call. Mountain insisted that the prospect of reimbursement from the originating carrier was illusory, because Mountain never receives information from Qwest about which carrier initiates any individual call, and it is therefore impossible for Mountain to seek reimbursement from a third carrier.
18
It is undisputed that Qwest need not absorb these costs; the only question is whether Qwest can charge Mountain for one of the five portions of this cost or must instead look to the originating carrier for all of the costs. It might well be reasonable for the Commission to authorize Qwest to apportion those costs, but we do not understand why the Commission did so. It did not explain why it rejected Mountain's contention that the originating carrier should be charged for all the costs. In any event, by indicating that Mountain could charge the originating carrier, it suggested that Mountain was essentially correct in claiming that the originating carrier should bear all the transport costs. At oral argument, Qwest's counsel obviated any need for us to decide this issue by indicating that Qwest would provide Mountain with the information necessary so that Mountain could charge the originating carrier for reimbursement. Under those circumstances, Mountain dropped that part of its petition.
19
* * * * *
20
Accordingly, the Commission's order is vacated in part and the case is remanded.
Notes:
1
US West was the predecessor company to Qwest, the LEC involved in the present dispute
2
In the words of the Commission, "[s]ection 51.703(b), when read in conjunction with Section 51.701(b)(2), requires LECs to deliver, without charge, traffic to [wireless] providers anywhere within the MTA [Major Trading Area] in which the call originated...."TSR, 15 FCCR at 11184 ¶ 31. An MTA is the area within which wireless providers offer service, and within which the FCC's reciprocal compensation rules apply. All three local calling areas at issue here are within the same MTA. Section 51.701(b)(2), to which the Commission referred, defines "telecommunications traffic" as that traffic "exchanged between a LEC and a [wireless] provider that, at the beginning of the call, originates and terminates within the same Major Trading Area, as defined in § 24.202(a) of this chapter."
3
Mountain argues that under Qwest's tariffs, wide area calling services exist only where the wireless carrier uses an interconnection known as Type 2. Mountain uses a Type 1 interconnection, which differs from Type 2 in that Mountain's customers have telephone numbers associated with their individual local calling areas instead of having numbers associated with the location of the POI, here, Pueblo. Before us, the FCC denies that there is any distinction between Type 1 and Type 2 interconnections for the purpose of establishing whether there is a wide area calling arrangement. We need not decide whether there can be a wide area calling arrangement in a Type 1 system, and our analysis does not turn on a conception of wide area calling being limited to Type 2 systems
4
Mountain further argues that Qwest would not legally be permitted to charge for calls by Qwest customers to paging customers with numbers in the same local calling area as the callerSee 47 U.S.C. § 153(48) (allowing a "separate charge" beyond that required for local service for "telephone service between stations in different exchange areas") (emphasis added); 47 C.F.R. § 51.701(d) (defining a call's termination as the point at which the call is delivered to the called party). We need not decide whether the FCC could reasonably interpret the statute and regulation to allow a toll where a call begins and ends within a single local calling area but passes through a different one.
5
Neither inTSR nor in this case has the Commission suggested, or has Qwest claimed, that Qwest had any right to refuse to allow Mountain to obtain paging numbers associated with each local calling area. See In re: Numbering Resource Optimization, 15 FCCR 7574, 7577 n. 2 (2000) ("A carrier must obtain a central office code [the first three digits of a seven-digit phone number] for each rate center in which it provides service in a given area code.").
|
U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600056
_________________________
UNITED STATES OF AMERICA
Appellee
v.
CODY L. BANNISTER
Hospitalman (E-3), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
For Appellant: Commander Brian L. Mizer, JAGC, USN.
For Appellee: Captain Sean M. Monks, USMC; Lieutenant George R.
Lewis, JAGC, USN.
_________________________
Decided 12 September 2018
_________________________
Before H UTCHISON , TANG, and H INES , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
HUTCHISON, Senior Judge:
A panel of officer and enlisted members sitting as a special court-martial
convicted the appellant, contrary to his pleas, of one specification of violating
a lawful general order, two specifications of abusive sexual contact, and one
specification of assault consummated by a battery in violation of Articles 92,
120, and 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,
920, and 928 (2012). The members sentenced the appellant to 45 days’ re-
striction and a bad-conduct discharge. The convening authority (CA) ap-
proved the findings and the bad-conduct discharge, but disapproved the 45
days’ restriction. In a previous opinion, we set aside the CA’s action after
finding post-trial processing error. See United States v. Bannister, No.
201600056, 2016 CCA LEXIS 686 (N-M. Ct. Crim. App. 30 Nov 2016) (unpub.
op.). Following our remand, the CA once again approved the findings and
only the bad-conduct discharge.
The appellant raises four assignments of error: (1) the evidence was fac-
tually insufficient to prove he committed abusive sexual contact; (2) a bad-
conduct discharge was an inappropriately severe sentence; (3) the military
judge erred in failing to instruct the members on their power to recommend
clemency after the members asked about alternatives to a bad-conduct
discharge; and (4) the Staff Judge Advocate erroneously advised the CA that
he could approve the sentence as adjudged and incorrectly served disqualified
counsel with the CA’s action.
After careful consideration of the record of trial and the parties’ plead-
ings, we conclude the findings and sentence are correct in law and fact, and
that no error materially prejudiced the substantial rights of the appellant.
Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).
I. BACKGROUND
All the charges in this case stem from the appellant’s interactions with
Hospitalman Recruit EC while they were both students at Hospital Corps-
man “A” School in Fort Sam Houston, Texas. The government’s case-in-chief
consisted of EC’s testimony and a sworn statement the appellant made to a
Naval Criminal Investigative Service (NCIS) Special Agent.
EC testified that she met the appellant at the beginning of April 2014
through a mutual friend. The appellant asked EC out on a date and she
declined. EC noticed a change in the way the appellant treated her after she
declined his invitation. She testified that the appellant began calling her
names like “slut” and “whore,” but soon his behavior escalated to inappropri-
ate touching. 1
The first inappropriate touching occurred in late April 2014. While EC
was walking back to her barracks room from a student center, the appellant
came up behind EC and grabbed her right breast. EC told the appellant to
stop, but “he just gave a little . . . smirk . . . and then walked away.” 2 EC
testified that a similar incident occurred in early June 2014, while she was
walking on base with two of her friends. Her friends saw the appellant
approaching, told EC the appellant wanted to talk to her, and the two friends
walked away. EC testified that she tried to ignore the appellant, at which
1 Record at 98.
2 Id.
2
point “he smacked [her] butt.” 3 EC further explained that the appellant did
not just hit her quickly, but rather he grabbed her buttocks and held his hand
there for a “long time.” 4 EC told the appellant that his actions were not funny
and to stop, but the appellant simply smirked. In his statement to NCIS the
appellant confirmed that on one occasion he did come up behind EC and grab
her in a “friendly manner” and “may have grabbed her breast” but if he did,
“it was accidental.” 5 He also acknowledged that there may have been other
times when he came up behind her and grabbed or touched her. The appel-
lant explained that he “was raised in a loving affectionate house and greet-
ings like that [were] normal to [him].” 6
Next, EC testified that over Memorial Day weekend, she and some friends
stopped by the smoke pit on their way back to the barracks after a day of
liberty at a nearby river. EC saw the appellant and another student at the
smoke pit and went over to talk to them while her friends walked over to the
nearby dumpsters to discard trash from their trip. As she approached the
smoke pit, the appellant “slapped [EC’s] butt” and cupped both of her breasts
with his hands. 7 When EC confronted the appellant and asked him why he
was touching her, the appellant laughed and told EC that it was funny. The
appellant admitted to NCIS that he encountered EC and others near the
“garbage dump, trash area” where he “hit her butt[,]” and that he might have
grabbed her breast. 8 He acknowledged that he “may have taken the joke too
far” but thought they were just “playing around.” 9
The next incident occurred in the schoolhouse’s computer lab. EC testified
that the appellant sat down next to her while she was studying. When she
told him she did not want to talk, the appellant put his hand on her thigh
and moved it towards her pelvic region. EC told the appellant to “knock it off”
and shifted in her seat to avoid the appellant. 10 The appellant then got up to
leave, but as he did, he walked behind EC’s chair, reached around her, and
“flicked [her] breast.” 11 The appellant conceded to NCIS that he may have put
3 Id. at 103.
4 Id.
5 Prosecution Exhibit (PE) 2 at 1.
6 Id.
7 Record at 101.
8 PE 2 at 2.
9 Id.
10 Record at 106.
11 Id. at 107.
3
his hand on her leg to get her attention so he could talk to her, but denied
that he was rubbing her leg “to sexually assault her.” 12
Finally, EC testified that the appellant again grabbed her breast while
she was standing in an on-base café speaking with a classmate. She claimed
the appellant folded his arms, tucking his right hand under his left, and then
standing next to EC—”only about four to six inches away”—surreptitiously
reached out and touched her breast. 13 The appellant told NCIS that he
remembered encountering EC at the café and attempting to “flick her arm”
with his fingers to get her attention and that he might have hit her breast if
she “turned the wrong way.” 14
In his defense, the appellant called four witnesses who each testified that
they never saw the appellant touch EC, despite being nearby on the various
occasions alleged by EC.
The members convicted the appellant of one specification of abusive sexu-
al contact for touching EC’s breasts on divers occasions, one specification of
abusive sexual contact for touching EC’s buttocks on divers occasions, one
specification of assault consummated by battery for touching EC’s leg, and
one specification of violating the Secretary of the Navy’s Sexual Harassment
policy. 15
II. DISCUSSION
A. Factual sufficiency
The appellant contends that his convictions for abusive sexual contact are
factually insufficient because we cannot be convinced beyond a reasonable
doubt that he intended to abuse, humiliate, or degrade EC. Rather, the
appellant argues that the public nature of his conduct, and the failure of
eyewitnesses to recall the events, much less to intervene, all reflect the
appellant’s belief that he was engaged in “teenage horseplay” between “mu-
tually consenting participants[.]” 16
We review questions of factual sufficiency de novo. Art 66(c), UCMJ; Unit-
ed States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The test for factual
sufficiency is whether “after weighing the evidence in the record of trial and
12 PE 2 at 2.
13 Record at 109.
14 PE 2 at 2.
15 Secretary of the Navy Instruction 5300.26D, “Department of the Navy (DON)
Policy on Sexual Harassment” (3 Jan 2006).
16 Appellant’s Brief of 23 Aug 17 at 13.
4
making allowances for not having personally observed the witnesses, [this
court is] convinced of appellant’s guilt beyond a reasonable doubt.” United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quota-
tion marks, and emphasis omitted). In conducting this unique appellate
function, we take “a fresh, impartial look at the evidence,” applying “neither
a presumption of innocence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” Washington, 57 M.J. at
399. Proof beyond a reasonable doubt does not mean, however, that the
evidence must be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N-M. Ct. Crim. App. 2001).
Although the appellant does not challenge the legal sufficiency of the abu-
sive sexual contact convictions, we are mindful that Article 66(c), UCMJ,
requires this court “to conduct a de novo review of [both the] legal and factual
sufficiency of the case.” Washington, 57 M.J. at 399 (citation omitted). “The
test for legal sufficiency is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States
v. Robinson, 77 M.J. 294, 297-98, (C.A.A.F. 2018) (quoting Rosario, 76 M.J. at
117).
To sustain the appellant’s convictions for abusive sexual contact, we must
be convinced beyond reasonable doubt that: (1) the appellant committed
sexual contact upon EC; and (2) that he did so by causing bodily harm to
EC. 17 Sexual contact is defined in pertinent part, as “touching . . . either
directly or through the clothing . . . the . . . breast . . . or buttocks of any
person, with an intent to abuse, humiliate, or degrade any person; or . . .
touching . . . any body part of any person, if done with an intent to arouse or
gratify the sexual desire of any person.” MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2012 ed.), Part IV, ¶ 45.a.(g)(2). Bodily harm is
defined as “any offensive touching of another, however slight, including any
. . . nonconsensual sexual contact.” Id. at Part IV, ¶ 45.a.(g)(3). Since the
bodily harm alleged in each of the appellant’s abusive sexual contact specifi-
cations is the charged sexual contact, we must also be convinced beyond
reasonable doubt that EC did not consent to the appellant’s touching her
buttocks and breasts.
17 See Article 120(d), UCMJ (“Any person subject to this chapter who commits or
causes sexual contact upon or by another person, if to do so would violate subsection
(b) (sexual assault) had the sexual contact been a sexual act, is guilty of abusive
sexual contact[.]”). Since the appellant’s convictions for abusive sexual contact each
alleged a “bodily harm” theory of liability, we incorporate the elements of Article
120(b)(1)(B), UCMJ.
5
The appellant admitted in his sworn statement to NCIS that he touched
EC’s buttocks and may have also touched her breasts. EC testified credibly
that that the appellant not only slapped and grabbed her buttocks, but also
grabbed, cupped, and flicked her breasts, often doing so covertly so that
others nearby could not see or would not notice. Regardless, on appeal, the
appellant does not now challenge the acts underlying the abusive sexual
contact specifications, but argues that the evidence is insufficient to prove
that he had the requisite criminal intent—to abuse, humiliate, or degrade.
Alternatively, he argues that the evidence is insufficient to prove that EC did
not consent to his touching. We disagree.
First, the appellant’s intent may be proven by circumstantial evidence.
United States v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014); United States v.
Vela, 71 M.J. 283, 286 (C.A.A.F. 2012). Here, the appellant repeatedly
touched EC’s breasts and buttocks—often times surreptitiously in public—
despite her demands that he stop and after she told him she did not find his
actions funny. This conduct evinces the appellant’s intent to harass, embar-
rass, and humiliate EC. That the appellant touched EC on her breasts and
buttocks—not her head, her arms, or any other non-erogenous zone—is
strong circumstantial evidence of his intent to abuse, humiliate, or degrade
her, especially with each subsequent contact after her initial objection.
Second, as we noted above, the definition of sexual contact includes not
only touching certain body parts with the intent to abuse, humiliate or
degrade, but also touching any part of the body with the intent to arouse or
gratify sexual desires of any person. The appellant’s repeated touching of
EC’s buttocks and breasts only after she declined his invitation to go on a
date with him is also strong circumstantial evidence of sexual intent.
Finally, we reject the appellant’s assertion that EC consented to him
touching her breasts and buttocks and that he honestly and reasonably
believed that she did consent. EC testified compellingly that she repeatedly
told the appellant to stop and resisted his advances. Indeed, the appellant’s
admission that EC was merely an acquaintance, “not a good friend,” and the
stealthy manner in which he touched her belie any notion that EC consented
or that the appellant had any reasonable belief that she did. 18
Consequently, after carefully reviewing the record of trial and considering
all of the evidence in a light most favorable to the prosecution, we are con-
vinced that a reasonable factfinder could have found the appellant touched
EC’s breast and buttocks on divers occasions with the intent to abuse, humil-
iate or degrade EC, or to arouse or gratify his or her sexual desire. Further-
more, after weighing all the evidence in the record and making allowances for
18 PE 2 at 2.
6
not having personally observed the witnesses, we too are convinced beyond a
reasonable doubt of the appellant’s guilt.
B. Sentence appropriateness
The appellant next avers that a bad-conduct discharge is an inappropri-
ately severe sentence for his crimes. We disagree.
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). “Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused gets the pun-
ishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
This requires our “individualized consideration of the particular accused on
the basis of the nature and seriousness of the offense and the character of the
offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (citation
and internal quotation marks omitted). In making this assessment, we
analyze the record as a whole. Healy, 26 M.J. at 395-97. Despite our signifi-
cant discretion in determining sentence appropriateness, we may not engage
in acts of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
The appellant was convicted of two specifications of abusive sexual con-
tact for repeatedly touching EC’s breasts and buttocks, one specification of
assault consummated by battery for touching her leg, and one specification of
violating the Secretary of Navy instruction prohibiting sexual harassment.
Based on these offenses, the appellant faced the special court-martial juris-
dictional maximum punishment of confinement for 12 months, reduction to
the paygrade of E-1, forfeiture of two-thirds pay per month for 12 months,
and a bad-conduct discharge. The appellant’s approved sentence included
only the bad-conduct discharge.
Having given individualized consideration to the nature and seriousness
of these crimes, the appellant’s short record of service, and all matters con-
tained in the record of trial, including matters submitted by the appellant in
extenuation and mitigation, and the victim’s testimony during sentencing, we
conclude the sentence as approved by the CA is not inappropriately severe
and is appropriate for this offender and his offenses. United States v. Baier,
60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at 395-96; Snelling, 14
M.J. at 268. Granting sentence relief at this point would be to engage in
clemency, which we decline to do. Healy, 26 M.J. at 395-96.
C. Instructions
Citing United States v. Keith, 46 C.M.R. 59 (C.M.A. 1972), the appellant
contends that following a question from the members while they were delib-
erating on a sentence, the military judge erred in failing to instruct the
members that, in addition to awarding a sentence, they could recommend
clemency to the CA. Specifically, the members asked “Do we have an alter-
7
nate option of [administrative separation] or [Other than Honorable] besides
the BCD listed?” 19 The following colloquy occurred between the military judge
and the parties:
MJ: What’s the parties’ positions on this . . . question?
TC: “No” seems to be the best answer, sir.
DC: Yes, sir. Now I’m thinking, I’ve given administrative sepa-
ration.
MJ: All right. 20
The military judge recalled the members, and instructed them simply that,
“The answer is no.” 21 The trial defense counsel did not object.
Since no objection was made to the instructions given to panel members,
we review the military judge’s instructions for plain error. RULE FOR COURTS-
MARTIAL (R.C.M.) 1005(f), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.); United States v. Griffin, 25 M.J. 423, 425 (C.M.A. 1988). Under
plain error review, relief is granted only when “(1) there was error, (2) the
error was plain and obvious, and (3) the error materially prejudiced a sub-
stantial right of the accused.” United States v. Garner, 71 M.J. 430, 434
(C.A.A.F. 2013) (citation omitted).
“[T]he military judge’s instructions to members must be adequate to allow
the court ‘intelligently to determine a punishment appropriate to the accused
before it.’” United States v. Perkinson, 16 M.J. 400, 401 (C.M.A. 1983) (quot-
ing United States v. Turner, 34 C.M.R. 215, 217 (C.M.A. 1964)). To that end,
“in a proper case it is error for the military judge to fail to disclose to the
court members their right to recommend clemency.” Id. (quoting Keith, 46
C.M.R. at 63). However, a military judge need not provide a clemency in-
struction when the facts of a case “do not sufficiently raise the possibility that
the members intended to recommend clemency.” Id. In Keith, the members
had numerous questions related to that appellant’s discharge. The members
consolidated those questions and asked, “If the court does not award a bad
conduct discharge who will determine what type of discharge he gets at some
later date and what observations are available?” Id. at 61. The military judge
instructed the members that they could not “adjudge or recommend or
consider the possibility of any type administrative discharge” and that if they
“decide[d] to adjudge any discharge in [the] court-martial it [could] only be a
bad conduct discharge.” Id. In an Article 39(a), UCMJ, session prior to in-
19 Record at 348; Appellate Exhibit XXIII.
20 Record at 348.
21 Id. at 350.
8
structing the members, the military judge declined to give an instruction on
clemency. The Court of Military Appeals (CMA) recognized that this was “not
an ordinary case” and concluded that the military judge “erred in failing to
inform the court of the conditions under which they could . . . recommend an
administrative discharge, disapproval of the adjudged punitive discharge or
suspension of the latter” after permitting counsel to discuss administrative
discharges at length during their arguments on sentencing. Id. at 64.
The appellant argues that his case is similar to Keith. However, as the
CMA recognized, Keith was not the ordinary case. More recently, in Per-
kinson, our superior court clarified that the propriety of a clemency instruc-
tion must be determined on a case by case basis. In Perkinson, the military
judge declined to provide a clemency instruction after the members returned
the sentencing worksheet with the words “bad conduct discharge” stricken
and the words “general discharge as unsuitable for military service” replacing
them. Perkinson, 16 M.J. at 401-02. The CMA concluded that the “mere
attempt to award a general discharge, standing alone, was insufficient to
signal an intention on the part of the members to recommend clemency” and
consequently, the military judge did not err in declining to provide the
instruction. Id. at 402.
In United States v. Epps, No. 201300423, 2014 CCA LEXIS 517 at *5 (N-
M. Ct. Crim. App. 29 Jul 2014) (unpub. op.), the members asked whether
Airman Epps would go to an administrative separation board if they did not
award a punitive discharge. Without objection from the trial defense counsel,
the military judge did not provide the clemency instruction. Applying Per-
kinson, we concluded that the members’ single question about what might
happen should they not award a punitive discharge, “did not trigger a re-
quirement to give the clemency instruction.” Id. at *6. The appellant’s case is
similar. Here, the members simply asked whether there was an “alternate
option.” 22 After being told, “no” the members indicated that their questions
were answered. 23 Like Epps, here the members’ single question about their
discharge options did not trigger a sua sponte requirement for the military
judge to instruct the members about recommending clemency. To be sure, the
members’ question here was far less indicative of a desire on their part to
recommend clemency than were the actions of the Perkinson members, who
went so far as trying to award an administrative discharge by writing it into
the sentencing worksheet. Yet, our superior court concluded such action “did
not sufficiently raise the possibility that the members intended to recommend
clemency.” Perkinson, 16 M.J. at 401. Because the appellant fails to show
22 Record at 348.
23 Id. at 350.
9
that the members intended to recommend clemency, we find no plain or
obvious error in the military judge’s failure to provide the members with a
clemency instruction.
D. Post-trial
Finally, the appellant argues that the CA’s Staff Judge Advocate provided
erroneous post-trial advice when she recommended that the CA approve the
sentence as adjudged, despite the fact that the CA had disapproved the 45
days’ restriction in her prior action. The appellant contends this error preju-
diced him because the CA “took the unusual step of meeting with trial de-
fense counsel to discuss clemency, and he may have erroneously believed
disapproving restriction was some measure of clemency.” 24 The appellant
further argues that he could have addressed this error directly with the CA,
but his counsel was never served with the CA’s action.
Where there is error in post-trial processing and “some colorable showing
of possible prejudice” thereby, this court must either provide meaningful
relief or remand for new post-trial processing. United States v. Wheelus, 49
M.J. 283, 289 (C.A.A.F. 1998) (citation omitted); see also United States v.
Wilson, 54 M.J. 57, 59 (C.A.A.F. 2000).
Even assuming that the Staff Judge Advocate’s advice was error, we find
no prejudice. First, the CA once again disapproved the 45 days’ restriction.
Second, the appellant’s claim of prejudice is purely speculative, and he
provides no evidence that the CA actually thought disapproving the re-
striction amounted to clemency. Rather, such an assertion is betrayed by the
record: the appellant submitted clemency matters and met with the CA—
asking that he order a new trial or disapprove the bad-conduct discharge—
after having already received the Staff Judge Advocate’s Recommendation
containing the putative error. Having found no colorable showing of possible
prejudice, we conclude the appellant’s assignment of error is without merit.
III. CONCLUSION
The findings and sentence as approved by the CA are affirmed.
Judge TANG and Judge HINES concur.
For the Court
RODGER A. DREW, JR.
Clerk of Court
24 Appellant’s Brief at 22.
10
|
690 So.2d 208 (1997)
Sherlena M. DAVIS
v.
The HOME DEPOT.
No. 96-CA-850.
Court of Appeal of Louisiana, Fifth Circuit.
February 25, 1997.
Writ Denied May 1, 1997.
*209 John O. Braud, Brenda Braud, Independence, for Plaintiff/Appellant Sherlena M. Davis.
M. Blake Monrose, Lafayette, for Defendant/Appellee The Home Depot.
Before BOWES, GRISBAUM and CANNELLA, JJ.
BOWES, Judge.
Appellant, Ms. Sherlena Davis, appeals a judgment of the Office of Worker's Compensation, maintaining the exception of res judicata filed by her employer, Home Depot Inc. We reverse.
Ms. Davis filed a petition for worker's compensation benefits in 1994, alleging that she was disabled due to an accident suffered in the course and scope of her employment as head cashier at Home Depot. She averred that she injured her back while picking up heavy drawers from cash registers, and that she now suffers from two herniated discs in her back.
The employer responded with an exception of res judicata, alleging that a compromise agreement made in connection with an earlier accident in 1990 precluded the instant claim. The Administrative Law Judge sustained the exception. In an unpublished opinion, a panel of this Court reversed the decision and remanded the case, finding that the court had refused to consider all the medical evidence and that from the record then before the court, it did not appear that the trial judge's inquiry was sufficient.
Another hearing on the exception was held, at which time the claimant amended her petition to reflect an accident date of October 22, 1994. Following the hearing, the judge again sustained the exception of res judicata, and again, claimant appeals.
EVIDENCE AND TESTIMONY
Ms. Davis testified that she was injured on October 22, 1994 when she lifted up a cash drawer and felt a pain in her back. She further testified that she was insured under a disability insurance policy through Home Depot, with an effective date of October 1, 1994, and that the policy contained an exclusion for pre-existing conditions. Subsequent to the accident, she was ordered by that disability insurer to be examined by an independent medical examiner, Dr. Victor Chisesi; she is presently collecting under that policy. She testified further that she has been diagnosed as having herniated discs at L4-5 and L5-S1. Prior to October 22, 1994, she had never been diagnosed as having a herniated disc. Mrs. Davis was the only witness who testified. Admitted into evidence at the hearing were medical reports from her treating physician, Dr. Stuart Phillips, Dr. Chisesi, and Dr. Thor Borensen of the Culicchia Neurological Clinic.
On her petition, claimant does state that she was "re-injuried(sic) from 1990 (Oct.1994 see attached)." She also filed a handwritten *210 narrative explaining that she had been injured in September of 1990 and diagnosed as having a cervical and lumbar strain. She was restricted to light duty work and was a phone operator until November 1, 1993, when she was made a head cashier. In October, 1994 she went to Dr. Phillips to see about her low back pains and leg pain. She was put on light duty status, but her employer told her there was no light duty work and she would have to take medical leave. She stated that on her last visit to her doctor (Dr. Borensen) in August of 1993, prior to being made cashier, she was not having much significant pain and was doing well. However, in October of 1994 when she went to Dr. Phillips, she had back pain and muscle spasm. She was restricted to light duty only, and defendant put her back on cashier's duty.[1]
MEDICAL EVIDENCE
The medical report from Dr. Kishner of Gulf States Rehabilitation Associates contained in the record[2] states that as of August 9, 1993, claimant was not having any significant pain and "she is not really having many problems at all."
The report of Dr. Chisesi dated March 8, 1995, stated that Ms. Davis claimed to have injured her back lifting cash drawers at work. Regarding her former injury, the physician found that her past history included a lumbosacral strain "and she did well therefrom and recovered completely." Dr. Chisesi diagnosed a herniated disc at the L5-S1 level and recommended a laminectomy. He found her to be (temporarily) totally disabled.
The report of Dr. Borensen, dated January 15, 1993, stated that the claimant had suffered from cervical and lumbar strains in the 1990 accident. A mildly bulging disc, within normal limits, was found at the L5-S1 level in 1991 and at the time of the examination, claimant complained of chronic pain in her neck and low back, as well as severe headaches. Dr. Borensen felt that objectively, her injuries from that fall were trivial and that her pain had no underlying physical cause. In his opinion, there was a temporal relationship to the onset of her symptoms and her injury, although he felt that her underlying depression significantly contributed to the persistence of her symptoms.
The report of Dr. Phillips dated November 25,1994, relied upon by both the defendant and the trial court stated, in relevant part:
... [Claimant] has two bad discs, 4-5 and 5-1. They both reproduce the pain down into her leg. 3-4 is normal.
I went back over the history of this. This lady hurt her back. She had light duty until October 1993. When she went back to regular duty, she had recurrence of pain, so this is a continuum. She has never really had a significant symptom free episode, so she still has her problems from her original injury.
Dr. Phillips also recommended surgery and noted that a facet joint denervation did not work. Claimant was found to be totally disabled from heavy manual labor.
The compromise or settlement relied upon by the defendant as the basis for its exception was entered into between Ms. Davis and Home Depot as the result of an intervention, filed by the latter, in a third party tort suit between Ms. Davis and John Amato.[3] Claimant and defendant settled the workers compensation claim and reduced the settlement to judgment, which reads in pertinent part as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the agreement of settlement and compromise contained in the foregoing Joint Petition be approved and made the judgment of the Court, and accordingly, it is further ordered, adjudged and decreed that Home Depot, Inc, waive its legal interest in the sum of $42,138.65 representing its total intervention in plaintiff's third party tort suit, case no. 422-483; *211 and additionally pay to Sherlena Davis the sum of $14,000.00, $2000.00 of which constitutes attorney fees, in exchange for which and according to applicable law, Home Depot Inc. shall forever be discharged from any and all liability of Sherlena Davis under the Louisiana Worker's Compensation Act, which in any way relates or arises out of the accident and injury occurring on September 22, 1990, sustained while petitioner was employed by Home Depot, Inc., including any claims for past, present and future worker's compensation benefits and/or medical benefits, penalties or attorneys' fees, ...
Following the hearing on the present exception, the court took the matter under advisement and subsequently granted the exception of res judicata. In its reasons for judgement the trial court stated:
What puzzles this court is claimant's statements in her 1008, "re-injuries from 1990". Now she is trying to "crawfish" with the explanation that she "re-injured her back."
On October 27, 1994, claimant visited with Dr. Manale.[4] He spoke of her back injury in 1990 and of her continuous and significant complaints of back pain since returning to work at The Home Depot.
* * * * * *
Now claimant claims she re-injured the same injury in October of 1994 and she contends she is entitled to additional benefits. Claimant further contends that this case should be forwarded to the Second Injury Board.
The only doctor who cared for claimant for both complaints was Dr. Manale. His opinion is that claimant's present injury is the same injury she had in 1990. At the time of the 1990 injury, prior to settlement, claimant was offered surgery and refused it. Claimant's settlement more than likely took in the possibility of surgery in the future....
Dr. Manale further stated that claimant had continuous and significant complaints of back pain since returning to work at The Home Depot. Evidently, this injury did not heal with conservative care and more than likely flared up again. Claimant took her chances when she agreed to a settlement in 1993. This court cannot grant her "two bites at the apple."
ANALYSIS
An exception of res judicata is the proper procedural vehicle when a suit is barred by a valid written compromise or transaction. Brown v. Drillers, Inc., 630 So.2d 741 (La.1994); Watkins v. Sentry Insurance Co., 502 So.2d 1132 (La.App. 4 Cir. 1987); Tarver v. Oliver H. Van Horn Co., Inc., 591 So.2d 1366 (La.App. 4 Cir.1991).
The party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. Furthermore, if there is any doubt as to its applicability, the exception must be overruled.
State, Dept. of Social Services v. Matthews, 615 So.2d 1112 (La.App. 5 Cir.1993), citations omitted.
La. R.S. 13:4231 defines res judicata as follows:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in *212 any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
According to the official notes under this article, the central inquiry is not whether the second action is based on the same cause or cause of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.
After a careful review of the entire record, we find that the trial court was manifestly erroneous in finding that claimant was barred by res judicata from bringing the present suit.
The medical evidence in its entirety demonstrates that the court mischaracterized Ms. Davis' more recent injuries as a mere continuation of her problem from 1990. Even the most cursory reading of the testimony at the trial verifies that Ms. Davis is inarticulate and (at best) has difficulty grasping certain concepts. Based on the medical reports preceding the 1994 accident and the statements attributed to claimant by her physicians, it is obvious that Ms. Davis was professing to have injured her back again. It is eminently clear that Ms. Davis is asserting that an intervening accident, lifting up cash drawers in her capacity as head cashier, caused her present disability. It is further clear that at the time of the 1990 accident, Ms. Davis suffered a back strain and headaches, and not the two herniated discs from which she now suffers. There is no evidence of record that claimant had ruptured a disc in the 1990 accident, or that she had ever had a prior problem with the L5-S1 disc.
The trial court erred as a matter of fact in finding that Dr. "Manale" treated claimant for both the 1990 and 1994 injuries, not only because Dr. Manale never treated the claimant at all; but also because if the court indeed meant to refer to Dr. Phillips, it is still incorrect inasmuch as that physician did not treat claimant until after the second accident. The statement in Dr. Phillips' medical report, that she still had problems from her original injury, is not a sufficient basis for the trial court's finding that claimant's present injury is the same injury she had in 1990. While Ms. Davis may have some lingering problems from her first injury, the record indicates that she did not become disabled in 1994 until the second injury occurred. Considering the evidence in the record, we find defendant has not carried his burden of proving that Ms. Davis' injuries relate to or arise out of the injury of 1990. Rather, we find that Ms. Davis has again injured her lower back in the 1994 accident.
Transactions and compromises regulate the differences which appear clearly to be comprehended in them by the parties and they do not extend to differences which the parties never intended to include in them. Condoll v. Johns-Manville Sale Corp., 448 So.2d 169 (La.App. 5 Cir.1984); Pat O'Brien's Bar, Inc. v. Franco's Cocktail Products, Inc., 615 So.2d 429 (La.App. 4 Cir.1993). The burden of proof in the present case is clearly on defendant to establish the requisites for a valid compromise, including the parties' intent to settle the differences being asserted in the action in which it is interposed. Brown v. Drillers, Inc., 630 So.2d 741 (La.1994); Shepherd v. Allstate Ins. Co., 562 So.2d 1099, 1101 (La.App. 4 Cir.1990). Even when valid, releases of future actions are narrowly construed by the courts to assure that the parties fully understand which rights have been released, and further, that they understand the resulting consequences. Brown, supra. As a result, if the release instrument leaves any doubt as to whether a particular future action is covered by the compromise, it should be construed as not covering such future action. Brown, supra.
Certainly there is no clear waiver of future accidents or any future injuries to claimant's back. Defendant's interpretation of the judgment could not be reasonably nor fairly interpreted so as to exclude subsequent and future injuries (independent from the first accident) to the same portion of the anatomy. Under La. R.S.13:4231, supra, the present cause of action, which arose in 1994 after the rendition of the final compromise judgment, could not have been asserted earlier and is, therefore, not precluded by that compromise judgment.
*213 For the above reasons, we are compelled to conclude that the trial court was manifestly erroneous, this time, in maintaining the exception of res judicata. Accordingly, the judgement must be reversed.
DECREE
The judgment maintaining the exception of no cause of action is reversed and the matter remanded to the trial court for further proceedings. Costs are taxed to appellee.
REVERSED AND REMANDED.
NOTES
[1] A work capacity evaluation from her 1990 accident, attached to her petition and made part of the record, clearly states that this position is in the medium capacity range.
[2] The report was introduced at the first trial on the exception and was therefore properly before the court.
[3] No other information relative to the nature of the suit or the parties involved is in the record.
[4] The judge apparently confused Dr. Phillips with Dr. Manale, another physician in the same orthopedic clinic.
|
777 N.E.2d 986 (2002)
334 Ill. App.3d 404
268 Ill.Dec. 63
STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellant,
v.
James J. TILLERSON, d/b/a JJ. Tillerson Construction Company, Jeffrey Gause, and Debra Gause, Defendants-Appellees.
No. 5-01-0623.
Appellate Court of Illinois, Fifth District.
Rule 23 Filed August 9, 2002.
Motion to Publish Granted September 18, 2002.
Opinion Filed September 18, 2002.
*988 Stephen W. Thomson, Thomson Law Offices, Edwardsville, for Appellant.
Lawrence O. Taliana, Taliana, Rubin & Buckley, for Appellee.
Justice KUEHN delivered the opinion of the court:
Plaintiff State Farm Fire and Casualty Company (State Farm) appeals the trial court's entry of a judgment on the pleadings for defendant James J. Tillerson, doing business as J.J. Tillerson Construction Company (Tillerson), in State Farm's action for a declaration that it had no duty to defend Tillerson in an action by Jeffrey and Debra Gause. The sole issue for review is whether the trial court erred in finding that State Farm had a duty to defend its insured based on the underlying complaint. We reverse.
Tillerson was the holder of a contractor's liability policy issued by State Farm effective March 14, 1992, through March 14, 1993. A second contractor's liability policy was issued effective March 14, 1993, through March 14, 1994.
On February 18, 1993, the Gauses and Tillerson executed a "Proposed Estimate," whereby Tillerson, for a fee of $37,602.23, agreed to construct a new room addition and convert the Gauses' existing carport into a garage. Sometime after the completion of the project, the Gauses filed suit against Tillerson arising out of the aforementioned agreement. Specifically, the complaint alleged that the Gauses were injured as a result of Tillerson's breach of an express warranty of workmanship, breach of the implied warranty of habitability, and breach of the implied warranty of fitness for ordinary and particular purpose and that the breaches proximately caused the Gauses' damage. The crux of the Gauses' underlying complaint is that Tillerson breached his warranties to the Gauses by building over a cistern and failing to take the necessary precautions to prevent uneven settling of the soil beneath the room addition, resulting in the damage identified in the complaint.
Tillerson tendered his defense to State Farm. On November 14, 1996, State Farm filed a complaint seeking a declaration that it had no duty to defend Tillerson in the underlying suit. On March 18, 1997, State Farm filed a motion for a judgment on the pleadings. On April 19, 1997, the Gauses filed a motion for a judgment on the pleadings, seeking a summary judgment. On December 5, 1997, the court denied both motions for a judgment on the pleadings. On June 19,1998, to clarify its prior ruling, the trial court granted the motion for a summary judgment filed by the Gauses and denied State Farm's motion to reconsider.
The certified question is whether State Farm has a duty to defend Tillerson under its contractor's liability policy against the allegations of the underlying first-amended complaint filed by the Gauses. This question includes the following set of issues: (1) whether or not the claims of the breach of an express warranty of workmanship, the breach of the implied warranty of habitability, and the breach of the implied warranty of fitness for ordinary and particular *989 purpose, as specifically described in the underlying complaint against Tillerson, allege an "occurrence" as defined under the liability policy, (2) whether or not the claims specifically described in the underlying complaint against Tillerson allege "property damage" as defined under the liability policy, (3) whether or not exclusionary language contained within the liability policy excludes liability assumed by the insured in a contract or agreement, and (4) whether or not allegations in the underlying complaint trigger exclusions described in the liability policy for damage to the insured's own work.
On appeal, we review a judgment on the pleadings on a de novo basis. Employers Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill.2d 127, 138, 237 Ill.Dec. 82, 708 N.E.2d 1122, 1129 (1999). A judgment on the pleadings should be entered if the admissions contained within the pleadings reveal no genuine issues of material fact such that the movant would be entitled to a judgment as a matter of law. Ehlco Liquidating Trust, 186 Ill.2d at 138, 237 Ill.Dec. 82, 708 N.E.2d at 1129. We must consider that all well-pleaded facts by the nonmoving party are admitted. Ehlco Liquidating Trust, 186 Ill.2d at 138, 237 Ill.Dec. 82, 708 N.E.2d at 1129. We must also examine the pleadings to determine whether a genuine issue of material fact exists, and if we find no such issue, then we determine if the matter at issue can be resolved solely as a matter of law. Ehlco Liquidating Trust, 186 Ill.2d at 138, 237 Ill.Dec. 82, 708 N.E.2d at 1129.
To determine an insurer's duty to defend its insured, the court must look to the allegations of the underlying complaint and compare those allegations to the relevant coverage provisions of the insurance policy. Monticello Insurance Co. v. Wil-Freds Construction, Inc., 277 Ill. App.3d 697, 701, 214 Ill.Dec. 597, 661 N.E.2d 451, 454 (1996). Additionally, we may consider "`true but unpleaded facts, which, when taken together with the complaint's allegations, indicate that the claim is within or potentially within the policy's coverage.'" Monticello Insurance Co., 277 Ill.App.3d at 701-02, 214 Ill.Dec. 597, 661 N.E.2d at 454 (quoting Associated Indemnity Co. v. Insurance Co. of North America, 68 Ill.App.3d 807, 816, 25 Ill.Dec. 258, 386 N.E.2d 529, 536 (1979)). If the underlying complaint alleges facts within or potentially within the policy's coverage provisions, the insurer has an obligation to defend even if the allegations are groundless, false, or fraudulent. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 73, 161 Ill.Dec. 280, 578 N.E.2d 926, 930 (1991).
An insurer may not refuse to defend an action against its insured unless it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case potentially within the policy's coverage. Dixon Distributing Co. v. Hanover Insurance Co., 161 Ill.2d 433, 439, 204 Ill.Dec. 171, 641 N.E.2d 395, 398 (1994). If the underlying complaint alleges several theories of recovery against the insured, the insurer must defend the insured even if only one such theory is potentially within the coverage of the policy. Wilkin Insulation Co., 144 Ill.2d at 73, 161 Ill.Dec. 280, 578 N.E.2d at 930 (citing Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 194, 355 N.E.2d 24, 28 (1976)).
The threshold that the complaint must satisfy in order to present a potential coverage claim is low. La Rotunda v. Royal Globe Insurance Co., 87 Ill.App.3d 446, 451, 42 Ill.Dec. 219, 408 N.E.2d 928, 933 (1980). The underlying complaint and the insurance policy should be liberally construed in favor of the insured. Wilkin Insulation Co., 144 Ill.2d at 74, 161 Ill.Dec. *990 280, 578 N.E.2d at 930. Policy language must be interpreted in its "`plain, ordinary[,] and popular sense,'" and where a provision is clear and unambiguous, it will be applied as written. Wilkin Insulation Co., 144 Ill.2d at 74, 161 Ill.Dec. 280, 578 N.E.2d at 930 (quoting Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 121, 294 N.E.2d 7, 12 (1973)). A determination concerning the applicability of an exclusionary clause is governed by the same liberal duty-to-defend standard. Wilkin Insulation Co., 144 Ill.2d at 78, 161 Ill.Dec. 280, 578 N.E.2d at 933.
With these principles in minds, we review the allegations of the underlying complaint and the relevant insurance policy. We must determine whether the underlying complaint alleged potentially covered "property damage" caused by an "occurrence" that is not excluded by the various exclusionary clauses in the insurance policy.
To determine whether State Farm has a duty to defend Tillerson in the underlying lawsuit, we must determine whether the alleged damage resulted from an "occurrence." For purposes of this discussion only, we assume property damage.
Tillerson's contractor's liability policy states, "This insurance applies only to bodily injury or property damage caused by an occurrence * * *." The policy defines "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions which result in bodily injury or property damage." The use of the word "occurrence" in insurance policies broadens coverage and eliminates the need to find an exact cause of damages, as long as they are neither intended nor expected by the insured. Bituminous Casualty Corp. v. Gust K. Newberg Construction Co., 218 Ill.App.3d 956, 965, 161 Ill.Dec. 357, 578 N.E.2d 1003, 1009 (1991). Nevertheless, the occurrence must still be accidental. Bituminous Casualty Corp., 218 Ill.App.3d at 965, 161 Ill.Dec. 357, 578 N.E.2d at 1009.
State Farm argues that given the plain and ordinary meaning of "accident," the factual allegations of the Gauses' complaint do not describe an accident and thereby fail to trigger State Farm's duty to defend Tillerson under the policy State Farm issued to Tillerson. The Gauses alleged that Tillerson built the room addition over an existing cistern and failed to properly compact the soil before constructing the room addition. State Farm correctly states that this court has held that an "`accident'" is "`an unforeseen occurrence, usually of an untoward or disastrous character or an undesigned sudden or unexpected event of an inflictive or unfortunate character.'" State Farm Fire & Casualty Co. v. Watters, 268 Ill.App.3d 501, 506, 205 Ill.Dec. 936, 644 N.E.2d 492, 495-96 (1994) (quoting Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 619, 44 Ill.Dec. 791, 411 N.E.2d 1157, 1159 (1980)). Furthermore, the "`natural and ordinary consequences of an act do not constitute an accident.'" Watters, 268 Ill.App.3d at 506, 205 Ill.Dec. 936, 644 N.E.2d at 496 (quoting Freyer, 89 Ill.App.3d at 619, 44 Ill.Dec. 791, 411 N.E.2d at 1159). Carrying its argument forward, State Farm contends that Tillerson's alleged act of faulty workmanship could not be the typical fortuitous action constituting an accident.
The Gauses' damages were not the result of an accident. The Gauses' complaint alleged that the work Tillerson performed on the room addition and carport conversion was "defective in design, material[,] and workmanship because [Tillerson] built the addition over a cistern without taking necessary precautions[ ] and *991 failed to take precautions to prevent the damage caused by the settling of ground underneath the room addition." The complaint further alleged that the room addition and carport conversion are not fit for their intended purpose "as a direct result of [Tillerson's] failure to properly compact the soil supporting the new addition." These allegations do not fall within the meaning of an accident or an occurrence.
Where the defect is no more than the natural and ordinary consequences of faulty workmanship, it is not caused by an accident. See Bituminous Casualty Corp., 218 Ill.App.3d 956, 161 Ill.Dec. 357, 578 N.E.2d 1003. The factual allegations of the Gauses' complaint against Tillerson do not allege an accident. They allege no unforeseen or undesigned, sudden, or unexpected event. The construction defects set forth in the Gauses' complaint are the natural and ordinary consequences of Tillerson's alleged improper construction techniques in failing to properly compact the soil and in failing to fill or remove a cistern under the ground, prior to construction. Thus, the allegations of the underlying complaint do not potentially fall within the policy coverage. State Farm has no duty to defend Tillerson in the Gauses' suit.
We must further determine whether or not the Gauses' complaint alleged "property damage," as defined by the relevant policy. The contractor's liability policy defines "property damage" as "physical injury to or destruction of tangible property, including all resulting loss of that property," or "loss of use of tangible property that is not physically injured or destroyed, provided such loss of use is caused by physical injury to or destruction of tangible property."
The supreme court in Traveler's Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill.2d 278, 258 Ill.Dec. 792, 757 N.E.2d 481 (2001), concluded: "[T]o the average, ordinary person, tangible property suffers a `physical' injury when the property is altered in appearance, shape, color[,] or in other material dimension. Conversely, to the average mind, tangible property does not experience `physical' injury if that property suffers intangible damage, such as diminution in value * * *." Eljer Manufacturing, Inc., 197 Ill.2d at 301-02, 258 Ill.Dec. 792, 757 N.E.2d at 496. "`[Comprehensive general liability policies * * * are intended to protect the insured from liability for injury or damage to the persons or property of others; they are not intended to pay the costs associated with repairing or replacing the insured's defective work and products, which are purely economic losses. [Citations.] Finding coverage for the cost of replacing or repairing defective work would transform the policy into something akin to a performance bond.'" Eljer Manufacturing, Inc., 197 Ill.2d at 314, 258 Ill.Dec. 792, 757 N.E.2d at 503 (quoting Qualls v. Country Mutual Insurance Co., 123 Ill.App.3d 831, 833-34, 78 Ill.Dec. 934, 462 N.E.2d 1288, 1291 (1984)).
In their complaint, the Gauses merely seek either the repair or the replacement of defective work or the diminishing value of the home. The Gauses seek a recovery for economic loss, not physical injury to tangible property. There is no allegation that Tillerson tortiously injured the Gauses' home. No property damage is alleged and coverage is not afforded. The trial court erred in finding that State Farm had a duty to defend Tillerson.
State Farm further contends that any potential coverage alleged in the underlying complaint is precluded by various exclusionary clauses in the insurance policy. The policy excludes coverage for "property damage for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement." *992 This exclusion does not apply to liability for damages (a) assumed in a contract or agreement that is an insured contract or (b) that the insured would have in the absence of a contract or agreement. Illinois courts have refused to permit insured parties to receive insurance coverage for damages that result from a breach of contract. Indiana Insurance Co. v. Hydra Corp., 245 Ill.App.3d 926, 185 Ill.Dec. 775, 615 N.E.2d 70 (1993).
Coverage under contractor general liability policies is for tort liability for damage to other property, not for the insured's contractual liability for economic loss. Home Indemnity Co. v. Wil-Freds, Inc., 235 Ill.App.3d 971, 977, 175 Ill.Dec. 884, 601 N.E.2d 281, 285 (1992). As we have discussed above, the Gauses do not allege any sudden or calamitous event that caused damage to other property. They only pursue a claim for a breach of contract to recover their alleged economic loss. This breach-of-contract claim is excluded under the above-cited exclusion.
The contractor's liability policy between State Farm and Tillerson also contains the following relevant exclusions:
"11. to property damage to:
* * *
e. that particular part of real property on which you or any contractor or subcontractor working directly or indirectly on your behalf is performing operations, if the property damage arises out of those operations; or
f. that particular part of any property that must be restored, repaired[,] or replaced because your work was incorrectly performed on it. This part of the exclusion does not apply to property damage included in the products-completed operations hazard.
* * *
13. to property damage to your work arising out of it or any part of it and included in the products-completed operations hazard.
* * *
14. to property damage to impaired property or property that has not been physically injured, arising out of:
a. a defect, deficiency, inadequacy[,] or dangerous condition in your product or your work; or
b. a delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to your product or your work after it has been put to its intended use."
These exclusions are premised on the theory that liability policies are not intended to provide protection against the insured's own faulty workmanship or product, which are normal risks associated with the conduct of the insured's business. See Home Indemnity Co., 235 Ill.App.3d at 976, 175 Ill.Dec. 884, 601 N.E.2d at 284. The rationale frequently articulated is that liability insurance should not become a warranty or be converted into a performance bond. Qualls, 123 Ill.App.3d at 834, 78 Ill.Dec. 934, 462 N.E.2d at 1291. "`The risk intended to be insured is the possibility that the goods, products[,] or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. * * * The coverage is for *993 tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or complete work is not that for which the damaged person bargained.'" Home Indemnity Co., 235 Ill.App.3d at 977, 175 Ill.Dec. 884, 601 N.E.2d at 285 (quoting Henderson, Insurance Protection for Products Liability & Completed Operations What Every Lawyer Should Know, 50 Neb. L.Rev. 415, 441 (1971)).
Here, the Gauses' complaint alleged that Tillerson displayed improper workmanship, breaching both implied and express warranties under the contract. The only alleged damage is to the single structure upon which Tillerson worked. We conclude that State Farm owed Tillerson no duty to defend in the underlying action because the allegations of the underlying complaint sought damages for repair and replacement arising out of physical injury to only the addition and carport itself. The underlying complaint alleged that Tillerson failed to construct and perform in accordance with design specifications, good workmanship, and reasonable construction standards. There are no allegations of harm to other property or persons.
Tillerson argues that the aforementioned policy conditions do not apply to him because he purchased "products-completed operations hazard" coverage. The definition in the policy states that "products-completed operations hazard" includes "all bodily injury and property damage arising out of your product or your work except products that are still in your physical possession or work that has not yet been completed or abandoned. The bodily injury or property damage must occur away from premises you own or rent under your business, including the selling, handling[,] or distribution of your product for consumption on premises you own or rent."
Products-completed operations hazard coverage is not applicable here. This provision of the policy specifically covers bodily injury and property damage arising out of "your product or your work." In this instance, the room addition and the carport conversion constitute "your product or your work." In the underlying complaint, there are no allegations of harm to other property or persons, only allegations arising from harm to the room addition and carport conversion itself. The alleged property damage did not arise out of "your product or your work." The sole damage is to the product or work itself. Accordingly, the products-completed operations hazard provision provides no coverage to Tillerson. The trial court erred in concluding that State Farm has a duty to defend Tillerson.
Further, contrary to Tillerson's argument, we find that this case is not like Trovillion v. United States Fidelity & Guaranty Co., 130 Ill.App.3d 694, 86 Ill. Dec. 39, 474 N.E.2d 953 (1985). In Trovillion, the plaintiffs built a house as general contractors for James and Melissa Williamson. The Williamsons sued the plaintiffs for breach of contract because of their failure to erect the house in a good and workmanlike manner. The Williamsons' complaint alleged that the floor sagged because of inadequate support and that the floor in the bedroom area buckled and became detached from the walls. The walls and vinyl kitchen floor cracked. The complaint also alleged that the roof leaked and that the mortar and bricks in the exterior walls and the concrete footings cracked because of structural defects. Trovillion, 130 Ill.App.3d at 697, 86 Ill. Dec. 39, 474 N.E.2d at 955. The plaintiffs' insurance company initially undertook their defense under a reservation of rights but later withdrew its defense, citing certain policy exclusions.
*994 The reviewing court determined that the third party's damages were potentially covered by the policy. However, Trovillion is distinguishable from this case. In Trovillion, the appellate court noted that the insurer must have been uncertain of its potential liability, because it initially undertook the defense of the Williamsons' claim. The appellate court concluded that the duty to defend arose because the insurer failed to secure a declaratory judgment of its rights and obligations before or pending the trial of the original action and it failed to defend under a reservation of rights. Trovillion, 130 Ill.App.3d at 700, 86 Ill.Dec. 39, 474 N.E.2d at 958. Further, Trovillion did not address the argument that the third party's damages were not caused by an occurrence or the argument that property damage was not alleged.
For the foregoing reasons, we reverse the judgment of the circuit court of Madison County.
Reversed.
MAAG, P.J., and RARICK, J., concur.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HOWARD TRUMAN JACOBS; ROBERT
EDWIN WILLIAMS; JOHN T.
GARBROUGH; HERMAN SHARP;
PAUL E. HILLIKER; C. W. PICKETT;
LARRY C. RICHERSON; ALBERT C.
SMITH; RONALD B. HAHN;
WILLIAM F. SETZER; LLOYD D.
RAFFALDT; DARRELL R. LANGFORD;
DAVID TAYLOR; MICHAEL E. LORMAN;
No. 95-2395
JOHN W. SMITH; RANDAL J. ADAMS;
GARY W. WAMPLER; JAMES BURDEN;
GILES S. FISHER, JR.; MICHAEL
MCCORKEL; JAMES PULLEY; KENDALL
GOODMAN; DEBORAH GOODMAN,
Plaintiffs-Appellants,
v.
CENTRAL TRANSPORT, INC.,
Defendant-Appellee.
HOWARD TRUMAN JACOBS; ROBERT
EDWIN WILLIAMS; JOHN T.
GARBROUGH; HERMAN SHARP;
PAUL E. HILLIKER; C. W. PICKETT;
LARRY C. RICHERSON; ALBERT C.
SMITH; RONALD B. HAHN;
WILLIAM F. SETZER; LLOYD D.
RAFFALDT; DARRELL R. LANGFORD;
DAVID TAYLOR; MICHAEL E. LORMAN;
No. 95-2396
JOHN W. SMITH; RANDAL J. ADAMS;
GARY W. WAMPLER; JAMES BURDEN;
GILES S. FISHER, JR.; MICHAEL
MCCORKEL; JAMES PULLEY; KENDALL
GOODMAN; DEBORAH GOODMAN,
Plaintiffs-Appellants,
v.
CENTRAL TRANSPORT, INC.,
Defendant-Appellee.
2
HOWARD TRUMAN JACOBS; ROBERT
EDWIN WILLIAMS; JOHN T.
GARBROUGH; HERMAN SHARP;
PAUL E. HILLIKER; C. W. PICKETT;
LARRY C. RICHERSON; ALBERT C.
SMITH; RONALD B. HAHN;
WILLIAM F. SETZER; LLOYD D.
RAFFALDT; DARRELL R. LANGFORD;
DAVID TAYLOR; MICHAEL E. LORMAN;
No. 95-2397
JOHN W. SMITH; RANDAL J. ADAMS;
GARY W. WAMPLER; JAMES BURDEN;
GILES S. FISHER, JR.; MICHAEL
MCCORKEL; JAMES PULLEY; KENDALL
GOODMAN; DEBORAH GOODMAN,
Plaintiffs-Appellees,
v.
CENTRAL TRANSPORT, INC.,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Charles K. McCotter, Jr., Magistrate Judge.
(CA-92-17-7-F, CA-92-478-5-F)
Argued: April 4, 1996
Decided: May 3, 1996
Before RUSSELL, WIDENER, and HALL, Circuit Judges.
_________________________________________________________________
Affirmed in part and reversed and remanded in part by unpublished
opinion. Judge Russell wrote the majority opinion, in which Judge
Widener joined. Judge Hall wrote an opinion dissenting in part.
_________________________________________________________________
3
COUNSEL
ARGUED: Richard Lynn Masters, MASTERS, MULLINS &
ARRINGTON, Louisville, Kentucky, for Appellants. John James
Doyle, Jr., CONSTANGY, BROOKS & SMITH, Winston-Salem,
North Carolina, for Appellee. ON BRIEF: Junius B. Lee, III, LEE &
LEE, Whiteville, North Carolina, for Appellants. M. Ann Anderson,
CONSTANGY, BROOKS & SMITH, Winston-Salem, North Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
RUSSELL, Circuit Judge:
The plaintiffs are 21 current and former lease operators for Central
Transport, Inc. ("Central Transport"), a trucking company based in
High Point, North Carolina. As lease operators, the plaintiffs were
independent contractors, not employees of Central Transport. The
plaintiffs owned and operated their own tractors and hauled a variety
of bulk commodities in trailers provided by Central Transport. The
plaintiffs entered into a series of standard equipment leases with Cen-
tral Transport; each lease did not govern a particular trip, but all trips
made by the lease operator during the lease period. The 21 plaintiffs
reside in various states and operated out of Central Transport termi-
nals across the eastern United States.
Of the several claims the plaintiffs brought against Central Trans-
port, one alleged that Central Transport had overcharged them for
workers' compensation insurance. After a bench trial before a magis-
trate judge,1 the magistrate judge held that Central Transport had
_________________________________________________________________
1 The parties agreed to try this case before a magistrate judge, pursuant
to 28 U.S.C. § 636(c)(1). The parties have elected to appeal the magis-
trate judge's decision directly to the Fourth Circuit, pursuant to 28
U.S.C. § 636(c)(3).
4
breached its contract and violated a regulation of the Interstate Com-
merce Commission ("ICC"), 49 U.S.C. § 1057.12(i). The magistrate
judge rejected the plaintiffs' claim that Central Transport had com-
mitted an unfair or deceptive trade practice, in violation of the North
Carolina Deceptive Trade Practices Act (the "Act"), N.C.G.S. § 75-
1.1, et seq.
Both sides contest the magistrate judge's decision. The plaintiffs
challenge the magistrate judge's conclusion that Central Transport did
not commit an unfair or deceptive trade practice. The plaintiffs
pressed this claim because they will receive treble damages under the
Act if they can prove that Central Transport committed an unfair or
deceptive trade practice. In its cross-appeal, Central Transport asserts
that its actions did not even constitute breach of contract, let alone an
unfair or deceptive trade practice. Central Transport, alternatively,
contests the magistrate judge's measure of damages for the breach of
contract.
We agree with the magistrate judge that Central Transport did not
commit an unfair or deceptive trade practice. However, we disagree
with the magistrate judge's factual finding that Central Transport
overcharged the plaintiffs for workers' compensation insurance.
Because the magistrate judge relied on this factual finding to conclude
that Central Transport violated an ICC regulation and breached its
leases, we reverse the portion of the judgment relating to workers'
compensation insurance and remand for a correction of the damage
award.
I.
The plaintiffs filed two separate complaints against Central Trans-
port, which the district court consolidated before trial. Along with a
number of minor claims and allegations, these complaints describe
two areas of serious wrongdoing. First, the plaintiffs allege that, over
the years, Central Transport failed to pay its lease operators the full
portion of the freight revenues owed to its lease operators under the
terms of their leases and covered up these underpayments by failing
to provide its lease operators with the information required to calcu-
late their pay. Second, the plaintiffs allege that Central Transport
overcharged its lease operators for workers' compensation insurance
5
and used the premiums to subsidize the workers' compensation insur-
ance policy that Central Transport maintained for its own employees.
Despite the plaintiffs' accusations that Central Transport engaged
in shady and underhanded business practices, the facts reveal that
Central Transport treated its lease operators with fairness and integ-
rity.
A. Driver pay formula
For their compensation, lease operators receive a portion of the
freight revenues billed to Central Transport's customers for each trip
made. The leases clearly state the "driver pay formula" used by Cen-
tral Transport to determine the lease operator's portion of the freight
revenues.
Beginning in January 1984, Central Transport adopted an
extremely complicated driver pay formula, which resulted from a new
requirement imposed by the ICC on motor carriers in the early 1980s.
The ICC required motor carriers to roll all fuel surcharges into their
freight rates. It also mandated that lease operators receive a minimum
of twelve cents per mile if the freight rates contained rolled-in fuel
surcharges.
Most motor carriers simply rolled the fuel surcharges into their
rates and maintained the same pay percentage arrangement in effect
before the roll-in occurred. This action lowered the overall revenue
paid to the lease operators. Unlike its competitors, Central Transport
sought to ensure that its lease operators received the same amount of
revenue that they did before the fuel surcharges were rolled into the
freight rates. The driver pay formula became more complicated
because it had to keep track of the rolled-in fuel surcharges (i.e., the
"internal fuel surcharge"). When the ICC imposed new fuel sur-
charges in 1989, the driver pay formula became even more compli-
cated because the formula also had to track these"external" fuel
surcharges to ensure that the lease operators' overall revenue did not
decrease.
In June 1991, Central Transport abandoned its complicated driver
pay formula for a simpler mathematical expression. It is clear, how-
6
ever, that Central Transport used a complicated formula between
1984 and 1991 to protect the lease operators, not to bewilder them.
The lease operators received bi-weekly settlement statements that
showed their portion of the freight revenues, as calculated by Central
Transport. Although the statements were required to state all the
information required for the lease operators to calculate their pay on
their own--thus ensuring that they received the correct amount--the
statements often lacked critical information. The plaintiffs believe
that Central Transport has underpaid them over the years.
In fact, it has not. During discovery, the parties engaged an
accounting firm to conduct an independent audit of Central Trans-
port's pay records. The audit consisted of a detailed review of ran-
domly sampled transactions involving all of the plaintiffs. The
auditors examined shipping records, driver pay documentation, appli-
cable contracts or tariffs, and other records to determine the accuracy
of the pay received by the plaintiffs. The audit revealed that, despite
the complexity of the driver pay formula, Central Transport paid its
lease operators correctly for the work performed. Although Central
Transport made some minor errors here and there, the errors tended
to favor the plaintiffs. The audit revealed no systemic underpayment
of the lease operators.
Many of the plaintiffs testified that they believed they were receiv-
ing between 60 and 62 percent of the freight revenues billed to Cen-
tral Transport's customers. The audit revealed that, between 1979 and
January 1984, the lease operators received 60 percent of the freight
revenue. When Central Transport adopted its more complicated driver
pay formula in 1984, the lease operators' payments increased to 66.1
percent of the freight revenue. Thus, between 1984 and 1991, the
plaintiffs received more than they thought they were entitled to
receive. Instead of cheating the lease operators out of their pay, Cen-
tral Transport treated them fairly.
The magistrate judge did conclude that Central Transport violated
federal regulations by failing to provide the plaintiffs with adequate
pay documentation. However, it found that there was nothing inher-
ently unfair or deceptive about the pay documentation Central Trans-
port provided. Furthermore, it found that the plaintiffs did not suffer
7
any material damages because they received the correct pay. The
magistrate judge awarded nominal damages of $100 per plaintiff for
Central Transport's technical error.
B. Workers' compensation insurance
The leases in effect before March 1991 required the lease operators
to purchase workers' compensation insurance through Central Trans-
port. Central Transport deducted funds from the lease operators' pay
and used those funds to purchase the insurance. Central Transport
covered its lease operators under its own workers' compensation pol-
icy, the same policy it used to cover its own employees. However,
most of the plaintiffs did not realize they received workers' compen-
sation coverage through Central Transport's employee group insur-
ance policy instead of through individual policies.
As the price of workers' compensation insurance rose in the late
1980s, lease operators began to complain about the high cost of work-
ers' compensation insurance. In response to these recurring com-
plaints, and out of a desire to reduce its overall workers'
compensation insurance exposure, Central Transport amended the
workers' compensation insurance requirement. Since March 1991, the
lease requires lease operators to obtain their own workers' compensa-
tion insurance. Lease operators also have the option of obtaining
occupation accident insurance, a lower-quality policy that covers
fewer injuries but at a lower premium. The lease requires only that
lease operators furnish Central Transport with proof of insurance cov-
erage.
Before 1991, when lease operators were still covered under Central
Transport's group policy, the plaintiffs paid for their insurance
according to a long-standing, well-published formula used to calcu-
late their premiums:
Premium = Gross Pay X .3333 X State Rate
Central Transport communicated this formula to its lease operators by
distributing memoranda and by including the formula in the leases.
Liberty Mutual Insurance Company ("Liberty Mutual"), Central
8
Transport's workers' compensation insurance carrier, provided the
formula to Central Transport. The same formula was used to deter-
mine the rates for the drivers employed by Central Transport. Central
Transport, however, paid the workers' compensation premiums for its
own employees.
The magistrate judge found that Central Transport used the lease
operators' premiums to subsidize its cost of providing workers' com-
pensation insurance to its employees. The magistrate judge relied on
statistical data introduced by the plaintiffs at trial, which established
the following facts:
In 1988, Central Transport paid a workers' compensation
premium of $1,297,088, of which the lease operators con-
tributed $341,682, or 26 percent.
In 1989, the total premium was $1,085,508, of which the
lease operators paid $342,187, or 31 percent.
In 1990, the total premium was $1,342,373, of which the
lease operators paid $493,311, or 37 percent.
Between 1988 and 1990, the lease operators comprised less
than 20 percent of the total work force.
The magistrate judge agreed with the plaintiffs that the evidence dem-
onstrated that Central Transport used the lease operators' premiums
to subsidize its own cost of providing workers' compensation insur-
ance to its employees.
Leases between motor carriers and lease operators must "specify
that the lessor is not required to purchase or rent any products, equip-
ment, or services from the authorized carrier as a condition of enter-
ing into the lease arrangement." 49 C.F.R. § 1057.12(i) (1995).
Central Transport's leases did in fact contain such a provision. The
magistrate judge concluded that Central Transport violated 49 C.F.R.
§ 1057.12(i) and breached its leases by providing workers' compensa-
tion coverage to the lease operators under its company-wide workers'
insurance policy. Although Central Transport did not actually provide
9
the workers' compensation insurance to the lease operators (Liberty
Mutual issued the coverage), the magistrate judge treated Central
Transport as the provider of workers' compensation insurance
because Central Transport received a benefit from including the lease
operators in its group policy: Central Transport used the lease opera-
tors' premiums to subsidize its own cost of providing workers' com-
pensation insurance to its employees. Thus, the magistrate judge
concluded that Central Transport violated 49 C.F.R.§ 1957.12(i) and
breached the leases, and it awarded damages in the amount of
$164,085.07, plus $10,867.43 in costs.
The magistrate judge did not find, however, that Central Trans-
port's workers' compensation insurance requirement constituted an
unfair or deceptive trade practice. The magistrate judge found that the
leases clearly stated the lease operators' obligation to purchase work-
ers' compensation insurance through Central Transport, and that Cen-
tral Transport provided the lease operators with the formula used to
calculate the lease operators' premiums.
Central Transport eventually responded to the lease operators'
complaints about escalating costs of workers' compensation insur-
ance. In 1991, Central Transport eliminated its requirement that lease
operators purchase workers' compensation insurance from Liberty
Mutual through Central Transport's group policy. Central Transport
now requires only that the lease operators show proof that they have
obtained a workers' compensation policy or an occupational accident
policy from an independant insurance carrier.
C. Other claims
Of the many minor claims asserted by the plaintiffs, the magistrate
judge ruled in favor of Central Transport. The magistrate judge found
that Central Transport owed specific amounts to three plaintiffs for
improper escrow account deductions, and additional amounts to two
plaintiffs for individual pay claims. It remedied these improper deduc-
tions but held that they did not constitute unfair or deceptive trade
practices.
10
II.
We first consider whether Central Transport's conduct constituted
a violation of the North Carolina Unfair Trade Practices Act (the
"Act"), N.C.G.S. § 75-1.1, which provides:
Unfair methods of competition in or affecting commerce,
and unfair or deceptive acts or practices in or affecting com-
merce, are declared unlawful.
N.C.G.S. § 75-1.1(a). The plaintiffs seek to prove that Central Trans-
port engaged in unfair or deceptive acts because an injured party
under the Act can collect treble damages and attorneys fees. N.C.G.S.
§ 75-1.6.
The Act prohibits both "unfairness" and "deceptiveness." Hageman
v. Twin City Chrysler-Plymouth Inc., 681 F. Supp. 303, 306
(M.D.N.C. 1988). "A practice is unfair when it offends established
public policy as well as when the practice is immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers."
Johnson v. Phoenix Mut. Life Ins. Co., 266 S.E. 2d 610, 621 (N.C.
1980). An act or practice is deceptive "if it has the capacity or ten-
dency to deceive." Marshall v. Miller, 276 S.E.2d 397, 403 (N.C.
1981).
Mere breach of contract does not constitute an unfair or deceptive
trade practice. Bartolomeo v. S. B. Thomas, Inc. , 889 F.2d 530, 535
(4th Cir. 1989). "It is clear that the statute encompasses such things
as misrepresentation and a wide variety of shady practices sometimes
associated with the marketing of consumer goods and services. What-
ever the limit of their reach, however, the words must mean some-
thing more than an ordinary contract breach." United Roasters, Inc.
v. Colgate-Palmolive Co., 649 F.2d 985, 992 (4th Cir. 1981), cert.
denied, 454 U.S. 1054 (1981). A plaintiff must show "substantial
aggravating circumstances attending the breach" to receive treble
damages under the Act. Bartolomeo, 889 F.2d at 535.
The plaintiffs argue that Central Transport committed an unfair and
deceptive trade practice by overcharging the lease operators for the
11
cost of workers' compensation insurance and using the lease opera-
tors' premiums to subsidize its cost in providing workers' compensa-
tion insurance to its own employees. The plaintiffs allege that Central
Transport covered up its scheme by withholding information about
the workers' compensation policy from the lease operators; in fact,
the plaintiffs contend they did not even know they were covered
under Central Transport's group policy instead of under individual
policies.
To prove that Central Transport used the lease operators' premiums
to subsidize its cost in providing workers' compensation insurance to
its own employees, the plaintiffs introduced statistical information
showing that the lease operators' contribution to the group plan was
disproportionate to their overall representation in the workforce. The
magistrate judge accepted this statistical evidence at one point in its
findings of facts and conclusions of law, finding that the "lease opera-
tors' contribution to the group plan was disproportionate. The lease
operators paid between 26% to 36% of Central's total workers' com-
pensation premiums for the years 1988-90, whereas their overall rep-
resentation in the Company's workforce was about 20%." Jacobs v.
Central Transport, Inc., No. 92-478-CIV-5, Findings of Fact and
Conclusions of Law 46 (E.D.N.C. Apr. 13, 1995).
We find that the magistrate judge clearly erred in relying on the
plaintiffs' statistical evidence because it does not demonstrate that the
lease operators subsidized Central Transport's workers' compensation
insurance premium. According to Liberty Mutual's formula, the
amount of the premium is proportionate to gross pay of the person
being covered; it is not the same per person. As long as the gross pay
of the average lease operator was greater than the gross pay of the
average employee of Central Transport, the lease operators would
have to pay a greater amount in workers' compensation insurance pre-
miums. To determine whether the lease operators paid a dispropor-
tionate amount in premiums between 1988 and 1990, the magistrate
judge should have compared their gross pay with the employees'
gross pay, not their overall representation in Central Transport's
workforce.
Having discounted the significance of the plaintiffs' statistical evi-
dence, we find no evidence in the record that Central Transport over-
12
charged the lease operators on their life insurance premiums. In fact,
the evidence demonstrates that the lease operators paid their fair
share. Central Transport calculated the lease operators premiums
according to a formula provided by Liberty Mutual, the same formula
that Liberty Mutual used to calculate Central Transport's premium for
coverage of its own employees. See Jacobs v. Central Transport, Inc.,
No. 92-478 CIV-5, Findings of Fact and Conclusions of Law 10
(M.D.N.C. Apr. 13, 1995) ("None of the rates differentiated between
company drivers and lease operators."). We conclude that the magis-
trate judge was clearly erroneous in finding that Central Transport
overcharged the lease operators on the workers' compensation insur-
ance premiums and used the lease operators' premiums to subsidize
its cost of providing workers' compensation insurance to its own
employees.
The plaintiffs also argue that Central Transport committed unfair
trade practices because its violations of ICC regulations demonstrate
that it offended the established public policy of North Carolina. The
plaintiffs claim that Central Transport violated ICC regulations by
requiring the lease operators to purchase workers' compensation
insurance through Central Transport, by failing to provide copies of
the insurance policy to lease operators upon request, by failing to pro-
vide lease operators with the information necessary to calculate
whether they were properly paid, and by making a few improper
deductions from certain plaintiffs' escrow accounts.
Not every technical violation of a federal regulation constitutes a
violation of public policy. Central Transport's violations of ICC regu-
lations were also breaches of contract, and the district court remedied
the violations with contract damages. These violations, however, do
not demonstrate that Central Transport engaged in immoral, unethical,
oppressive, or unscrupulous conduct. We see no substantially aggra-
vating circumstances to justify trebling Central Transport's contract
damages. Central Transport made a few mistakes that violated ICC
regulations and that the district court remedied through damages for
breach of contract. These ICC violations do not demonstrate that Cen-
tral Transport engaged in unfair trade practices.
We therefore reject the plaintiffs' argument that Central Transport
engaged in an unfair or deceptive trade practice.
13
III.
We next turn to Central Transport's cross-appeal. Central Trans-
port argues that its requirement that lease operators purchase workers'
compensation insurance through its group policy did not violate 49
C.F.R. § 1957.12(i) or breach the relevant provision in the leases.
Alternatively, Central Transport argues that the magistrate judge mis-
calculated the damages for its breach.
A.
The federal regulations governing leases between motor carriers
and lease operators require such leases to "specify that the [lease
operator] is not required to purchase or rent any products, equipment
or services from the authorized carrier as a condition of entering into
the lease arrangement." 49 C.F.R. § 1057.12(i). The ICC promulgated
the regulations in 49 C.F.R. § 1057 to "promote full disclosure
between the carrier and owner-operator in the leasing contract, [to]
promote the stability and economic welfare of the independent trucker
segment of the motor carrier industry, and [to] eliminate or reduce the
opportunity for skimming and other illegal practices." 44 Fed. Reg.
4680, 4680 (1979) (emphasis added). Section 1057.12(i) clearly ful-
fills these goals: it prevents motor carriers from extracting hidden
charges from their lease operators by requiring them to purchase
goods or services from the carriers at inflated prices.
The magistrate judge found that Central Transport violated 49
C.F.R. § 1057.12(i) and breached the various leases by requiring the
lease operators to purchase workers' compensation insurance through
Central Transport. The magistrate judge recognized that Liberty
Mutual, not Central Transport, provided the insurance to the lease
operators. Nonetheless, the magistrate judge construed Central Trans-
port as a provider of workers' compensation insurance because Cen-
tral Transport extracted a benefit from the insurance arrangement:
Central was more than a mere conduit for the purchase of
workers' compensation coverage for the lease operators
through an independent carrier. Central included the lease
operators in the Company's group policy for all of its
employees. In so doing, Central used the monies collected
14
as premiums from the lease operators to subsidize Central's
workers' compensation program for its employees.
***
The lease requirement that the lease operators purchase
workers' compensation insurance "through" Central did not
violate the regulatory and lease provisions prohibiting a
lease requirement that the lease operators "purchase . . . any
products, equipment or services from" Central. 49 C.F.R.
§ 1057.12(i) . . . . However, when Central unilaterally
decided to provide the lease operators' workers' compensa-
tion coverage through the Company's employee group plan,
Central became more than a mere conduit. Central became
the provider of a product or service.
Jacobs v. Central Transport, Inc., No. 92-478-CIV-5, Findings of
Fact and Conclusions of Law 45-56 (E.D.N.C. Apr. 13, 1995).
We agree with the general principle implicit in the magistrate
judge's holding: 49 C.F.R. § 1057.12(i) prevents a motor carrier from
requiring its lease operators to obtain products, equipment, or services
from a third party, where the carrier benefits from the arrangement.
Although 49 C.F.R. § 1057.12(i) applies only to products, equipment,
and services that the motor carrier itself provides to the lease opera-
tors, we construe the carrier to be a provider when it requires its lease
operators to deal with a third party and it receives some benefit from
the arrangement. The ICC enacted § 1057.12(i) to prevent a motor
carrier from skimming its lease operators' profits by exacting hidden
charges; a motor carrier cannot circumvent this regulation by launder-
ing its kickback through a third party.
We disagree with the magistrate judge's conclusion that Central
Transport received a benefit from its requirement that the lease opera-
tors purchase workers' compensation insurance through its group pol-
icy with Liberty Mutual. The magistrate judge found that Central
Transport used the lease operators' premiums to subsidize its cost of
providing workers' compensation coverage to its own employees. As
we have stated in the previous section, that finding was clearly erro-
neous. Central Transport charged the lease operators according to a
15
formula provided by Liberty Mutual, the same formula used to calcu-
late Central Transport's premium for coverage of its employees.
There is no evidence that Central Transport would have paid a higher
premium had it not included the lease operators in its workers' com-
pensation insurance policy.2 There is no evidence that Central Trans-
port received any sort of kickback for funneling the lease operators'
business to Liberty Mutual.
We therefore conclude that Central Transport did not violate 49
C.F.R. § 1057.12(i) or breach its leases.
B.
Even had we found that Central Transport violated 49 C.F.R.
§ 1057.12(i) and breached its leases with the plaintiffs by requiring
the lease operators to purchase workers' compensation insurance
through its group policy with Liberty Mutual, we could not have
awarded any damages.
If Central Transport had breached its leases, the plaintiffs would
have been entitled to compensatory damages. The purpose of com-
pensatory damages is to restore the injured party to the party's origi-
nal condition, i.e., to make the party whole. Shaver v. N. C. Monroe
Constr. Co., 306 S.E.2d 519, 526 (N.C. Ct. App. 1983), review
denied, 311 S.E.2d 294 (1984). For a breach of contract, the injured
party shall be compensated for all losses which the fulfillment of the
contract would have prevented or which the breach has caused. Coble
v. Richardson Corp. of Greensboro, 322 S.E.2d 817, 822 (N.C. Ct.
App. 1984).
_________________________________________________________________
2 There is also no evidence in the record that the lease operators would
have paid lower premiums if they had received individual policies, or if
they had had the option of purchasing insurance from a carrier other than
Liberty Mutual. However, it is irrelevant whether the lease operators
could have obtained a better price for workers' compensation insurance.
The plaintiffs can establish a violation of 49 C.F.R. § 1057.12(i) only if
they demonstrate that Central Transport benefitted by including the lease
operators in its group policy.
16
The magistrate judge found that Central had overcharged the lease
operators for the cost of workers' compensation insurance and used
the difference to subsidize its cost in providing workers' compensa-
tion coverage to its own employees. The magistrate judge, however,
did not award the amount of the overpayment as damages. Instead,
the magistrate judge measured the plaintiffs' damages as the differ-
ence between the cost of obtaining workers' compensation insurance
and the cost of obtaining occupational accident insurance.
We hold that the magistrate judge used an improper measure of
damages. Central Transport did not violate 49 C.F.R. 1057.12(i) or
breach its leases by requiring its lease operators to purchase workers'
compensation insurance, instead of occupational accident insurance,
as a condition of doing business. Nothing in the federal regulations
or the leases prevented Central Transport from requiring the lease
operators to purchase workers' compensation insurance instead of
occupational accident insurance, or some other lower-quality insur-
ance. Central Transport had every right to demand workers' compen-
sation insurance as a condition of doing business. The end result of
the magistrate judge's award of damages is a windfall for the plain-
tiffs, who receive workers' compensation insurance for the price of
occupational accident insurance, a lower-quality policy.
Central Transport could only have violated 49 C.F.R.§ 1057.12(i)
and breached its leases by overcharging the lease operators for the
cost of the workers' compensation insurance and using the difference
to subsidize its own workers' compensation insurance premium. The
proper measure of damages is the amount of the overcharge. The
magistrate judge should have awarded the plaintiffs' cost of obtaining
workers' compensation insurance from Liberty Mutual through Cen-
tral Transport's group policy, less the cost of obtaining workers' com-
pensation insurance from Liberty Mutual through individual policies.
However, there is no evidence that Central Transport overcharged
the lease operators for the cost of workers' compensation insurance.
We have already discounted the plaintiffs' statistical evidence that
attempted to show that the plaintiffs paid a disproportionate share of
the workers' compensation insurance premium. There is no evidence
that the inclusion of the lease operators in Central Transport's group
policy affected the amount of Central Transport's premium for the
17
coverage of its employees. No evidence suggests that the lease opera-
tors could have purchased individual workers' compensation policies
for less than the premiums paid to Liberty Mutual for their participa-
tion in Central Transport's group policy.
Because Central Transport did not overcharge the lease operators
for the workers' compensation insurance, we conclude that the plain-
tiffs did not suffer any damages resulting from a violation of 49
C.F.R. § 1057.12(i) or a breach of the leases.
IV.
For the foregoing reasons, we affirm the magistrate judge's judg-
ment in favor of Central Transport on the plaintiffs' claim for unfair
or deceptive trade practices. We reverse the magistrate judge's judg-
ment for the plaintiffs on their workers' compensation insurance
claim. We remand for a correction of the award of damages.
AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART
HALL, Circuit Judge, dissenting in part:
While I agree with most of what the majority has written, I dis-
agree on two points. First, I believe that 49 C.F.R.§ 1057.12(i) out-
laws the company store, period. The potential for abuse involved in
any forced sale -- whether of socks or workers' compensation cover-
age -- is sufficient to render it in violation of the regulation. I dis-
agree, then, that the plaintiffs must prove that Central Transport
actually benefited from forcing their participation in its own workers'
compensation plan.
As for damages, I agree that a remand is required. Though Central
Transport was not entitled to be a provider of workers' compensation
coverage, I know of no reason why it could not insist that such cover-
age be obtained. The plaintiffs' damages are not, therefore, properly
measured by the cost of the much less expensive occupational acci-
dent coverage.
18
On the other hand, I would not declare that the magistrate's finding
that the plaintiffs were actually overcharged (in some amount) was
clearly erroneous. We were not asked to make such a holding. Central
Transport conceded at argument that it offered no evidence of its own
payroll from which one could find that the plaintiffs' share of the pre-
miums was strictly proportional to their share of pay. In fact, Central
Transport asserts simply that "[t]he proper measure of damages for
plaintiffs' claim . . . is the difference between the amounts plaintiffs
paid for their insurance and the amount they should have paid based
on their percentage of representation of the work force." Brief of
Appellee/Cross Appellant at 33-34. I would order that this measure
of damages be applied on remand.
In these few respects, I respectfully dissent; otherwise, I join the
judgment and opinion of the majority.
19
|
130 P.3d 908 (2006)
William UDALL, an individual, Clete Bremner, and individual, and Gregory D. Sargent, an individual, Respondents,
v.
T.D. ESCROW SERVICES, INC. d/b/a T.D. Service Company, a Washington Corporation, U.S. Bancorp f/k/a Firstar Bank, NA, a Washington Corporation, and T.D. Service Financial Corporation, a California Corporation, Appellants.
No. 32963-8-II.
Court of Appeals of Washington, Division 2.
March 28, 2006.
*909 David A. Leen, Leen & O'Sullivan PLLC, Seattle, WA, for Appellants.
Yvonne Marie Mattson, Attorney at Law, Tacoma, WA, for Respondents.
HUNT, J.
¶ 1 T.D. Escrow (TD) appeals the trial court's grant of summary judgment to William Udall in a quiet title action arising from a statutory non-judicial foreclosure sale of property for which TD was the trustee. Udall offered the winning bid at a price the auctioneer had mistakenly set $100,000 lower than TD had authorized. TD refused to deliver the deed to Udall and to record it. TD argues that the trial court erred in denying its motion for summary judgment and in granting summary judgment to Udall, because the deed was neither delivered nor recorded as required to complete the purely statutory sale under RCW 61.24.050. Udall counters that summary judgment was proper under common law breach-of-contract principles and, therefore, TD could not rescind the sale based on a unilateral mistake in the auction price.
¶ 2 We hold that (1) RCW 61.24.050, not the common law, applies to this statutory non-judicial foreclosure sale; (2) the sale was not completed under the strict terms of the statute; and (3) therefore, Udall was not entitled to the property. Accordingly, we reverse the trial court's grant of summary judgment to Udall and grant summary judgment to TD.
*910 FACTS
¶ 3 The parties do not dispute the material facts. When William Brown failed to make home mortgage payments to his lender, U.S. Bank, U.S. Bank's trustee, T.D. Escrow (TD), instituted foreclosure proceedings. TD hired ABC Messenger Service to sell the property at a public auction. On September 19, 2003, TD filed a notice of trustee sale. The notice stated that Brown was in arrears for $137,197.06 in loan obligations and $10,834.18 for other charges and fees.
¶ 4 On April 16, 2004, TD directed ABC to start the auction bidding at $159,422.20. But ABC started bidding at $59,421.20, and William Udall bid $59,422.20. ABC accepted Udall's bid and gave him a receipt for his purchase, which included the words "VESTING CANNOT BE ALTERED ONCE THE AUCTIONEER COMPLETES THIS RECEIPT!" Clerk's Papers (CP) at 35.
¶ 5 Consistent with its general practice after an auction sale and before issuing a deed, TD took time to verify the validity of the bid and the receipt of funds for the sale, to check for intervening bankruptcy filings, and to check other circumstances. This process led TD to discover the auctioneer's bidding-price mistake and, subsequently, to void the sale. Five days after the auction, on April 21, 2004, TD sent Udall a refund, explaining that the auctioneer had not been authorized to open the bidding at $59,421.20. Udall rejected the refund.
¶ 6 On June 3, 2003, Udall sued TD and U.S. Bank to quiet title; Udall also filed a lis pendens on the property. TD moved for summary judgment, to quash the lis pendens, and for attorney fees. Udall filed a cross motion for summary judgment. The trial court denied TD's motions and granted Udall's cross motion for summary judgment.
¶ 7 TD appeals.
ANALYSIS
I. STANDARD OF REVIEW
¶ 8 When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issue of material fact. CR 56(c). The court must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.
II. NON-JUDICIAL FORECLOSURE SALES
¶ 9 Udall argues that (1) RCW 61.24.050, the Deeds of Trust Act, is ambiguous; and (2) accordingly, courts must use the common law of contract to supplement the Deeds of Trust Act. He contends TD was obligated to deliver the deed to him because he had a valid contract with TD, which TD could not rescind based on its unilateral mistake.
¶ 10 Washington courts have yet to address whether the common law of contracts applies to nonjudicial foreclosure sales. Addressing this issue of first impression, we reject Udall's arguments and hold that Washington's Deeds of Trust Act, RCW 61.24.050, not the common law of contracts, controls non-judicial foreclosure sales pursued under this statute.
A. Deeds of Trust Act
¶ 11 Our Legislature enacted Washington's Deeds of Trust Act (Act) to supplement the time-consuming judicial foreclosure process. John A. Gose, The Trust Deed Act in Washington, 41 WASH. L.REV. 94, 95-96 (1966). The Act prescribes detailed procedures that the parties must follow in order for a trustee to sell property in a nonjudicial foreclosure sale at a public auction. See, e.g., RCW 61.24.010 and .040. Once these presale requirements are met, the property can be sold.
¶ 12 RCW 61.24.050 provides:
When delivered to the purchaser, the trustee's deed shall convey all of the right, title, and interest in the real and personal property sold at the trustee's sale which the grantor had or had the power to convey at the time of the execution of the deed of trust, and such as the grantor may have thereafter acquired. If the trustee *911 accepts a bid, then the trustee's sale is final as of the date and time of such acceptance if the trustee's deed is recorded within fifteen days thereafter. After a trustee's sale, no person shall have any right, by statute or otherwise, to redeem the property sold at the trustee's sale.
(Emphasis added.) The Act does not explain the meaning of "final" in the context of a "trustee's sale," whether the trustee has an obligation to deliver a deed, and, if so, when the delivery must occur. Therefore, we endeavor to interpret the Legislature's intent for these gaps.
B. Statutory Construction
¶ 13 When interpreting a statute, our primary objective is to ascertain and to carry out the Legislature's intent and purpose. Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wash.2d 224, 239, 59 P.3d 655 (2002). To determine legislative intent, we look first to the plain language of the statute. Fraternal Order, 148 Wash.2d at 239, 59 P.3d 655. If a statute is ambiguous, we use principles of statutory construction, legislative history, and relevant case law to provide guidance in construing a statute's meaning. State v. Roggenkamp, 153 Wash.2d 614, 621, 106 P.3d 196 (2005).
¶ 14 In addition, we must construe the Act to further three objectives. First, the statutory non-judicial foreclosure process should remain efficient and inexpensive. Second, it should provide an adequate opportunity for interested parties to prevent wrongful foreclosure. Third, it should promote the stability of land titles. Cox v. Helenius, 103 Wash.2d 383, 387, 693 P.2d 683 (1985). In addition, because nonjudicial foreclosures lack the judicial oversight inherent in judicial foreclosures, we strictly apply and interpret the Act in favor of the borrower. Koegel v. Prudential Mut. Sav. Bank, 51 Wash.App. 108, 111, 752 P.2d 385, review denied, 111 Wash.2d 1004 (1988).
C. "Final" Sale Recording and Delivery
¶ 15 TD argues that a RCW 61.24.050 foreclosure sale is valid only if the deed is recorded and delivered. We agree that the deed must be delivered in order to convey real property rights under Washington's Deeds of Trust Act.
1. History
¶ 16 The pre-1998 version of RCW 61.24.050 provided:
The deed of the trustee, executed to the purchaser, shall convey the interest in the property which the grantor had or had the power to convey at the time of the execution by him of the deed of trust, and such as he may have thereafter acquired. After sale, as in this chapter provided, no person shall have any right by statute or otherwise to redeem from the deed of trust or from the sale.
RCW 61.24.050 (1996) (emphasis added). This pre-1998 version contained a number of ambiguities. For example, the term "executed" could mean "signed, done, given, performed, and delivered," or a combination of these acts. See BLACK'S LAW DICTIONARY 609 (8th ed.1999). Similar to the current version, this version of the Act did not establish when a foreclosure sale under the Act is completed, even though it uses the phrase "after sale."
¶ 17 Recognizing that nonjudicial foreclosure practice under the Act departed from strict statutory requirements, the Legislature sought to clarify the Act's ambiguities and requirements, including when a trustee's sale is final. S.B. REP. on Engrossed Substitute S.B. (ESSB) 6191, 55th Leg., Reg. Sess. (Wash.1998).[1] Accordingly, in 1998, the Legislature amended the Act to reflect then current practices. S.B. REP. on ESSB 6191. The amended Act read, in pertinent part, as follows:
When delivered to the purchaser, the trustee's deed shall convey all of the right, title.... If the trustee accepts a bid, then the trustee's sale is final as of the date and time of such acceptance if the trustee's *912 deed is recorded within fifteen days thereafter....
RCW 61.24.050 (emphasis added).
¶ 18 In this amended version, the Legislature separated delivery of the deed and finality of the sale into two distinct parts. The Legislature first changed the word "executed" to "delivery," which more narrowly defined when property rights are conveyed: "When delivered to the purchaser, the trustee's deed shall convey all of the right, title...." RCW 61.24.050 (emphasis added). According to the plain meaning of this sentence, a person acquires no rights to the property sold by non-judicial foreclosure until the deed is delivered. Thus, a foreclosure sale itself, including the acceptance of an auction bid, without delivery of the trustee's deed, conveys no property rights under the Act.
¶ 19 The Legislature then defined, in a separate sentence, when a sale under the Act is final: "If the trustee accepts a bid, then the trustee's sale is final as of the date and time of such acceptance if the trustee's deed is recorded within fifteen days thereafter...." RCW 61.24.050 (emphasis added). Here, "finality" refers only to establishing the date and finality of the sale, which become operative retrospectively only if the deed is recorded within 15 days after this final sale date.
2. Recording requirement
¶ 20 In amending the Act, the Legislature did not indicate that the purpose for requiring recording under RCW 61.24.050 differed from the general purpose for recording other documents under the Recording Act, RCW 65.08.[2] That general purpose is to place subsequent purchasers on notice of property's transfer from one owner to another,[3] not to convey rights in land to the purchaser. See RCW 65.08.070; Hoffman v. Graaf, 179 Wash. 431, 439, 38 P.2d 236 (1934).
¶ 21 A final sale date, established through recording, serves various purposes of the Act unrelated to conveyance. For example, a sale date is necessary to establish title priority and superiority against those who later record an interest in the property after the sale (e.g., bankruptcy filings). The final sale date also serves as the point after which no other person can redeem an interest in the property, thereby allowing the purchaser to obtain clear title. RCW 61.24.050. The final sale date further denotes the point at which a purchaser can possess the property or bring an unlawful detainer action against an unauthorized person living on the property. RCW 61.24.060.
¶ 22 We reiterate that we must strictly apply and interpret the Act in favor of the borrower, which in this case is Williams, on whose behalf the bank instituted foreclosure procedures to satisfy his debt. See Koegel, 51 Wash.App. at 111, 752 P.2d 385. We hold, therefore, that under the Act, (1) delivery of the trustee's deed is necessary to convey rights in real property sold during a statutory nonjudicial foreclosure sale of property; and (2) failure to record the deed within 15 days of the sale merely precludes establishing a final sale date. Here, TD never delivered the deed to Udall, so Udall acquired no rights in the property under the Act. Whether TD recorded the deed within 15 days of the purported sale date is irrelevant to the conveyance of property rights.
3. Duty to convey
¶ 23 Udall further argues that, under the Act, TD had a duty to deliver the deed to him. Again, we disagree.
¶ 24 The Act provides: "[T]he trustee or its authorized agent shall sell the property at public auction to the highest bidder," RCW 61.24.040(4) (emphasis added); and, "The purchaser shall forthwith pay the price bid and on payment the trustee shall execute to *913 the purchaser its deed." RCW 61.24.040(7) (emphasis added). We agree with Udall that this statutory language imposes on the trustee, or its authorized agent, an obligation to sell the property to the highest bidder and to execute the deed to the highest bidder; but the inquiry does not end here. Under RCW 61.24.050, this obligation arises only if and when the trustee accepts a bid: "If the trustee accepts a bid, then the trustee's sale is final . . . ." RCW 61.24.050 (emphases added).
¶ 25 A principal, such as TD, is responsible to a third party, such as Udall, only when it gives its agent actual authority to act on its behalf or when the principal manifests to a third party, based on reasonable, objective interpretation, that the agent has apparent authority to act on its behalf. See King v. Riveland, 125 Wash.2d 500, 507, 886 P.2d 160 (1994).[4] Udall has failed to show either real or apparent authority on the part of auctioneer ABC.
¶ 26 TD hired ABC as its agent to conduct the public auction. But TD did not authorize ABC to sell the property or to accept a bid for less than $159,421.20. See RCW 61.24.040(4) and .050. Therefore, ABC did not have actual authority to sell the property to Udall for $59,422.20.
¶ 27 Nor does the record show that ABC had apparent authority to sell the property at the mistakenly low opening price that Udall bid and ABC "accepted." The only arguable communication between Udall and TD was indirect, through TD's September 19, 2003 Notice of Trustee's Sale; this Notice stated that the property owner owed the lender $148,031.24, and the property would be priced higher than $148,000 in order to satisfy the existing debt. This Notice of Trustee's Sale did not establish that auctioneer ABC had apparent authority to open bidding at $59,421.20 or any other price lower than that necessary to satisfy seller Brown's debt on the property. See King, supra.
¶ 28 The record contains no other arguable communication between TD and Udall, direct or indirect. Thus, Udall cannot satisfy the requirement that, to establish "apparent authority," the principal (TD) must have manifested to the third party (Udall) that the agent (ABC) had apparent authority to act on its behalf. Here, there was no such communication that Udall could have reasonably and objectively interpreted as creating such apparent authority in ABC.[5]See King, 125 Wash.2d at 507, 886 P.2d 160.
¶ 29 Thus, under RCW 61.24.040(4), ABC lacked actual or apparent authority to sell the property for $59,422.20. And under RCW 61.24.050, ABC lacked actual or apparent authority to accept a bid for this amount. Therefore, we hold that TD did not have a duty to deliver the deed to Udall and that the sale was void for failure to meet the Act's statutory requirements.
D. Contract Law
¶ 30 The Act provides a detailed set of procedures for nonjudicial foreclosure sales such as the one here. See generally Joseph L. Hoffmann, Court Actions Contesting The Nonjudicial Foreclosure of Deeds of Trust in Washington, 59 WASH. L.REV. 323 (1984). Applying the common law of contracts would *914 interfere with these statutory procedures and contravene the Act's purpose and policy.
¶ 31 First, contract law is not directly applicable because a deed of trust necessarily involves three parties the debtor, the lender, and the trustee (rather than two contractual parties), Court Actions, 59 WASH. L.REV. at 323, and possibly a fourth party, the purchaser at the foreclosure sale. Second, applying contract law could contravene the Act's policies by making the process more lengthy (e.g., no finality), inefficient (e.g., more procedures), and expensive (e.g.litigation). See Cox, 103 Wash.2d at 387, 693 P.2d 683. Third, contract law is not necessarily interpreted in favor of borrowers, which is contrary to the Legislature's explicit requirement in the Act. See Koegel, 51 Wash.App. at 111, 752 P.2d 385. Lastly, if applied, contract law could provide exceptions to a narrowly prescribed statutory process that demands strict compliance. See Koegel, 51 Wash.App. at 111, 752 P.2d 385.
¶ 32 We hold, therefore, that the common law of contracts, including unilateral mistake,[6] is inapplicable to nonjudicial foreclosure sales under Washington's Deeds of Trust Act.
III. ATTORNEY FEES
¶ 33 TD argues that we should award it attorney fees under RCW 4.28.328. We disagree.
¶ 34 RCW 4.28.328(3) provides:
Unless the claimant establishes a substantial justification for filing the lis pendens, a claimant is liable to an aggrieved party who prevails in defense of the action in which the lis pendens was filed for actual damages caused by filing the lis pendens, and in the court's discretion, reasonable attorneys' fees and costs incurred in defending the action.
Courts have held that, to show a lack of substantial justification for filing a lis pendens, the aggrieved party must be able to prove that the claimant did not have a reasonable basis in fact or in law to file the lis pendens.[7] Such is not the case here.
¶ 35 TD placed the property on sale at a public auction, and Udall offered the opening bid price, which the auctioneer accepted. The receipt the auctioneer gave Udall stated that he had a vested interest in the property. Udall had a reasonable basis to believe that he had an interest in the property and, therefore, had "substantial justification" to file a lis pendens when TD refused to deliver the deed. RCW 4.28.328. We hold, therefore, that TD is not entitled to attorney fees under RCW 4.28.328, and we deny its request.
¶ 36 Accordingly, we reverse summary judgment for Udall, grant summary judgment for TD, and order the lis pendens removed from the property.
We concur: HOUGHTON, J., and VAN DEREN, A.C.J.
NOTES
[1] "Ambiguities about court involvement and other requirements are clarified, and when a trustee's sale is final is made clear." S.B. REP. on ESSB 6191.
[2] Accord 4 WASHINGTON REAL PROPERTY DESKBOOK 3D Deeds of Trust § 47.9(1) (1996) (nonjudicial procedures [are] designed ... to give notice of the proceeding to all parties with an interest in the property arising subsequent to the one being foreclosed).
[3] For example, for purposes other than statutory nonjudicial foreclosure sales under the Act, unrecorded deeds are valid conveyances. J.W. Fales Co. v. O.H. Seiple Co., 171 Wash. 630, 649-50, 19 P.2d 118 (1933).
[4] The Act explicitly permits trustees to use agents, thereby incorporating agency law principles. RCW 64.24.040. Moreover, other courts have applied agency law principles. In some jurisdictions, auctioneers serve only a ministerial function, especially if the trustee is required to be present during the auction. In others, the trustee may delegate power to an auctioneer to sell property and, if the auctioneer accepts the bid, the sale is valid. See 55 AM.JUR.2D Mortgages § 549 (1996).
[5] In our view, ABC's mere appearance at the auction and pronouncement of the mistakenly low opening bid does not meet the Act's requirement for a communication between TD and Udall establishing a reasonable belief that ABC had apparent authority to sell the property at this price.
Further detracting from Udall's claim of apparent authority was his vast experience as a sophisticated, foreclosure-sale purchaser who has purchased 100 foreclosed properties since 1995. Such an experienced foreclosure-sale purchaser should have had actual knowledge of ABC's lack of actual or apparent authority to sell the property at the auctioneer's opening bid price because this bid was $90,000 lower than the known amount the foreclosure sale had to yield to satisfy the property owner's debt.
[6] The parties cite two California Court of Appeals cases, neither of which holds that common law contract principles may supplement California's nonjudicial foreclosure laws: Residential Capital, LLC v. Cal-Western Reconveyance Corp., 108 Cal. App.4th 807, 134 Cal.Rptr.2d 162 (2003) (contract principles do not apply in nonjudicial foreclosure sales); 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc., 85 Cal.App.4th 1279, 102 Cal. Rptr.2d 711 (2001) (holding that a party making a unilateral mistake in bid price was not a procedural irregularity that would justify the trustee from withholding the deed).
Moreover, we are not bound by California courts' interpretations of California law. Thus, we do not rely on these cases here.
[7] See Richau v. Rayner, 98 Wash.App. 190, 198, 988 P.2d 1052 (1999) (no substantial justification when claimants assumed that they had the rights to property without any factual basis to support such as belief); Keystone Land & Dev. Co. v. Xerox Corp., 353 F.3d 1070, 1075-76 (9th Cir. 2003) (in interpreting Washington law, the court held that substantial justification exists where a claimant relied on a valid and viable legal theory to file a lis pendens).
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990 S.W.2d 876 (1999)
Tommy WELCH, Appellant,
v.
The STATE of Texas, Appellee.
No. 09-97-324CR.
Court of Appeals of Texas, Beaumont.
Submitted April 1, 1999.
Decided April 14, 1999.
Rehearing Overruled May 13, 1999.
*877 Douglas M. Barlow, Beaumont, for appellant.
Mark Mullin, Special Prosecution Unit, Huntsville, for state.
Before WALKER, C.J., BURGESS, and STOVER, JJ.
OPINION
DON BURGESS, Justice.
A jury found Tommy Welch guilty of aggravated assault with a deadly weapon and of possessing a deadly weapon in a penal institution. The trial court found the enhancement allegations to be true and sentenced Welch to two twenty-five year terms in the Texas Department of Criminal Justice, Institutional Division. The sentences are to run concurrently. Welch brings ninety-three issues on appeal.
The record reveals Welch, while an inmate in the TDCJ, stabbed another inmate, Henry Thomas. Thomas testified Welch attacked him with a weapon while he was writing a letter in his cell. Thomas said he did not have a weapon and did not have a reputation for violence and that Welch had no reason to fear him. Thomas also testified he followed the rules at the TDCJ and never had any problems with white inmates.
Welch testified Thomas attacked him and so he grabbed the weapon away from Thomas and stabbed him in order to subdue him. Welch stated he had been warned that Thomas often attacked white inmates and was a member of the "Kill or Die" gang; that Thomas inflicted extortion upon other inmates; that Thomas had been written up and had disciplinary actions taken against him for misbehavior in *878 prison; and that Thomas had told him about being written up and had threatened Welch. Welch additionally testified he was afraid of Thomas because of his past disciplinary record.
Another inmate, Samuel Kennedy, testified he warned Welch that Thomas was a dangerous individual and had assaulted other inmates. At trial, Welch tendered Exhibit 2, Thomas's penitentiary packet and disciplinary reports, but the trial judge refused to allow it into evidence based on the State's relevancy objections.
In issues one through eighty-nine, Welch complains the trial court erred in excluding Exhibits 2-A through 2-QQQQ. Exhibit 2 consists of numerous documents relating to Thomas's prior acts. These include Thomas's prior convictions for several robberies, disciplinary reports concerning Thomas's conduct at the TDCJ, and TDCJ notes and communications regarding Thomas's disruptive behavior. On appeal, Welch complains these documents were relevant to establish that Thomas was the aggressor on the occasion in question, and to show Welch's fear of Thomas.
The standard of review for admission or exclusion of evidence is abuse of discretion. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993). A trial judge has not abused her discretion unless she has "acted arbitrarily and unreasonably, without reference to any guiding rules and principles." Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.Amarillo 1991, pet. ref'd). Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the accused. Id.; TEX.R.APP. P. 44.2(b); see also Vega v. State, 898 S.W.2d 359, 363 (Tex.App.San Antonio 1995, pet. ref'd) (subjecting exclusion of evidence to harmless error analysis).
In determining harm, we consider the following factors: the source of the error; the nature of the error; whether and to what extent the error was emphasized by the State; the collateral implications of the error; how much weight a juror would probably place on the error; and whether declaring the error harmless would encourage the State to repeat it with impunity. Harwood v. State, 961 S.W.2d 531, 537 (Tex.App.San Antonio 1997, no pet.); Vega, 898 S.W.2d at 363.
In the present case, the trial court prevented Welch from introducing Exhibit 2, consisting of specific incidents of Thomas's conduct. Thomas had testified that he followed the rules of the TDCJ, that he did not have a reputation for violence, and that Welch had no reason to fear him. The general rule is that a party is not entitled to impeach a witness on a collateral matter. Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App.1990). However, as long as an opposing party is correcting a false impression made by a witness, the party is allowed to correct that false impression. Id. In doing so, the opposing party is entitled to bring in evidence of the witness's specific instances of conduct. Id. at 676; Lagrone v. State, 942 S.W.2d 602 (Tex.Crim.App.1997); Ex parte Carter, 621 S.W.2d 786, 788 (Tex.Crim.App.1981); Ochoa v. State, 481 S.W.2d 847, 850 (Tex. Crim.App.1972); Wheeler v. State, 988 S.W.2d 363 (Tex.App.Beaumont 1999, no pet. h.)(not yet reported).
We find the trial court erred in refusing to allow certain portions of Exhibit 2 into evidence. Evidence of Thomas's prior acts of misconduct involving his violations of the rules at the TDCJ and involving his assaultive and aggressive behavior at the TDCJ was admissible to correct the false impression his testimony left with the jury. Thomas's testimony left the jury with the false impression that Thomas had never been involved in aggressive and assaultive behavior with other prisoners and had never broken any rules at the TDCJ. The exclusion of Exhibit 2 affects Welch's substantial rights because the jury may have reached a different verdict had they been allowed to see this evidence. We sustain those issues consisting of TDCJ disciplinary reports and communications *879 that indicate Thomas's aggressive and assaultive behavior and his violations of the rules at the TDCJ; we sustain issues 10, 15, 17, 21, 25, 26, 29, 30, 34, 36, 40, 41, 50, 51, 55, 65, 66, 72, 73, 75, 83, 85. We need not address Welch's remaining issues. This cause is reversed and remanded in accordance with this opinion.
REVERSED AND REMANDED.
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772 S.W.2d 205 (1989)
Irma L. POINDEXTER, Appellant,
v.
Leroy P. FOSTER, M.D., and Gerald Lange, M.D., Appellees.
No. 09 88 107 CV.
Court of Appeals of Texas, Beaumont.
May 4, 1989.
Rehearing Denied May 24, 1989.
*206 Bruce W. Cobb, Beaumont, for appellant.
Michael L. Baker, Curry L. Cooksey, Richard L. Scheer, Beaumont, for appellees.
OPINION
BROOKSHIRE, Justice.
Appeal from the district court's order granting two motions for summary judgments in alleged medical malpractice cases. The movants for the summary judgments were Dr. Foster and Dr. Lange.
The Appellant sustained an injury to her right leg above the ankle by accidentally striking her leg on a metal bed railing. She said her family physician was called. She later was admitted to the emergency room of the Beaumont Medical and Surgical Hospital. There, she waited for her family physician, Dr. Lange. She swore that Dr. Lange was supposed to meet her at the emergency room. Irma's affidavit is long and detailed. The leg wound was bleeding rather profusely. She had been in the emergency room for an hour and a half. Hence, the attending emergency room physician, Dr. Leroy Foster, treated the wound. After this emergency room treatment, Dr. Foster referred Mrs. Poindexter to her family physician for all further treatment. Mrs. Poindexter attempted, again, to contact her regular family physician but that physician, Dr. Lange, did not return her telephone calls, Poindexter swore. Thereafter, Mrs. Poindexter developed complications from her wound and was hospitalized on at least two later occasions. The first complication occurred on or about February 7, 1984, when a hospital nurse opened Mrs. Poindexter's wound a second time even though accidentally. This was done when the nurse removed the stitches. Following that occasion, Mrs. Poindexter spent about three days in the hospital.
*207 Another hospitalization occurred on February 24, 1984, when a Dr. Washburn, a specialist, treated the wound to prevent further infection. On that second hospitalization, Mrs. Poindexter spent another three days in the hospital. A skin graft was performed by Dr. Washburn, a specialist in the branch of medicine known as plastic surgery. She was released 17 days later. Mrs. Poindexter's position was that the wound had not properly healed before she saw Dr. Washburn. Later, in August of 1984, being approximately six months after the original striking of the leg against the metal part of the bed, Mrs. Poindexter went to a dermatologist, Dr. Charles Crim. He put a special medicated cast on her leg.
The Appellant was also instructed to seek out a Dr. Walker who took an x-ray revealing a foreign object of approximately three millimeters in length in Mrs. Poindexter's leg. Mrs. Poindexter states that she cannot walk any appreciable distance without suffering a certain amount of pain and swelling in the affected leg. Thereafter, Mrs. Poindexter brought suit against only Dr. Lange and Dr. Foster for negligence in the treatment of her leg. Both of these doctors moved for summary judgment. We are required to treat as true the Appellant's affidavit in this appeal, whether the affidavit is correct or not.
Appellant's point of error is the trial court erred in granting the summary judgments in favor of both of the Appellees, Dr. Foster and Dr. Lange. Regarding Mrs. Poindexter's position against Dr. Foster, we note that Mrs. Poindexter, upon entering the emergency room, had intended to seek the services of Dr. Lange who was her family physician. We view the position of Dr. Foster as being simply an emergency room physician, and that, according to the ethics and customs of the medical profession and fraternity, he turned the case over completely to her regular family physician, Dr. Lange. Dr. Foster treated Mrs. Poindexter only after Dr. Lange failed to come to the emergency room, according to Poindexter's affidavit. After Mrs. Poindexter was instructed to contact Dr. Lange to take over the case, she did not see Dr. Foster again. Dr. Lange did take over the case medically and saw Mrs. Poindexter on two later occasions.
Dr. Wesley Washburn, a plastic surgeon, found that there had been a formation of an ulcer on the Appellant's leg rather than an infection. Dr. Washburn testified that he was familiar with the standards of the care of wounds in Jefferson County in 1984. He also stated that he was familiar with Mrs. Poindexter's accident and the subsequent medical care that she had received for that particular wound. In Dr. Washburn's deposition he unequivocally stated that he did not know what Dr. Lange did by way of treatment of Mrs. Poindexter. Dr. Washburn further unequivocally testified that, based on his expertise, experience and observation, he did not feel that there was any act or omission on the part of Dr. Foster that caused or contributed in any way to the delay of the healing of Mrs. Poindexter's leg wound.
The charges of negligence that the Appellant herein leveled against Dr. Foster's care and treatment seem to be that Dr. Foster should have administered a tetanus shot, that he allegedly allowed the wound to become infected, and that he failed to x-ray the wound. Dr. Washburn's testimony absolutely negated these charges. Furthermore, it is commonly understood medical ethics and practice that when an emergency room physician turns over a case to a regular family treating physician, as was done here, that the emergency room physician's duty toward the patient ceases. In this case the family physician undertook the management of the medical problems of Mrs. Poindexter.
The Appellant responded with an affidavit in which she was the affiant. It contained her sworn, factual observations in depth. Appellant failed to present any expert medical testimony to contravene the unequivocal testimony of the plastic surgeon. The plastic surgeon, Dr. Wesley W. Washburn, was certainly very well qualified to express an expert medical opinion as he had been a medical doctor practicing his *208 specialty in the Beaumont area continuously for about 35 years.
Dr. Washburn swore that Foster's action did not cause the leg wound to become infected, as Poindexter alleged. The uncontroverted clear, definite, expert medical testimony of Dr. Washburn was that he (Washburn) was treating a certain complication of the original injury, which was described as a three-point laceration with weak points, and that Dr. Foster simply did nothing to contribute to the inability of the leg wound to heal. Dr. Washburn's opinion was that, as applicable to Dr. Foster, the wound was not healing because Mrs. Poindexter was scratching it or interfering with it and she was not allowing it to heal normally.
This opinion was based on the proof of later facts that, once the area had been secluded with a Unna boot and, therefore, protected from scratching, the wound did heal. The Unna boot, according to Dr. Washburn, was entirely effective because, after the Unna boot was applied to the area of the wound, the wound (being an ulcer not an infection), did become totally healed within a reasonable period of several weeks. When Dr. Washburn saw Mrs. Poindexter in the latter part of September of 1984, the wound or ulcer was totally healed.
Dr. Washburn further testified that the foreign body found on x-ray did not have any connection with the delay in healing of the wound. Dr. Washburn testified, unequivocally, that the wound in question was not an infected wound which obviously would be red, inflamed and swollen and would be a type of open wound from which an expert could culture bugs from the same. Washburn swore that Mrs. Poindexter sustained a contaminated wound and that the difference between a contaminated wound and an infected wound is grossly obvious to the trained eye in that the infected wound would be red, swollen and inflamed. Simply stated, Mrs. Poindexter did not file, in her response, any appropriate affidavit containing an expert medical testimony that contradicted or, in anywise, contravened the relevant, positive deposition testimony of Dr. Washburn.
In fact, the only affidavit that she gave, by way of a response, was her own affidavit in which she swore that her further hospitalization was necessitated by her wound remaining essentially unattended for so long a time. Again, we are required to accept her affidavit as correct in this peculiar summary judgment proceeding. She further swore that, after she was released from the emergency room, she tried to reach Dr. Lange for two days but he did not return her telephone calls. A fair and balanced reading of Mrs. Poindexter's affidavit results in the logical conclusion that Dr. Lange, for whatever reasons, did not return her phone calls. Mrs. Poindexter swore that when Dr. Lange did finally see her in the hospital he stated to her that he did not have the time to take the stitches out of her leg that day, but he would do so on the following Monday. That hospital visit took place on a Friday. Although Dr. Lange did not remove the stitches the next Monday, the nurse did.
In motion for summary judgment practice, in order for a defendant to be entitled to a summary judgment, that defendant must disprove at least one essential element of the plaintiff's cause of action. Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.Corpus Christi 1988, no writ); Luna v. Daniel Intern. Corp., 683 S.W.2d 800 (Tex.App.Corpus Christi 1984, no writ). The ultimate question, here, then, is whether there is competent summary judgment evidence from Mrs. Poindexter, in view of the expert testimony of Dr. Washburn, that establishes a genuine issue of fact existing as to a necessary element of the Appellant's alleged medical malpractice cause of action.
The modern rule has been established that, in regard to those alleged acts of medical malpractice that relate to the testing, diagnosis and treatment by a medical doctor, the affidavit of the Appellant, herself, a lay person, is incompetent evidence and cannot controvert the sworn testimony of a medical expert or a medical specialist. Gandara, supra. See Hart v. *209 Van Zandt, 399 S.W.2d 791 (Tex.1965); Duncan v. Horning, 587 S.W.2d 471 (Tex. Civ.App.Dallas 1979, no writ); TEX.R. CIV.P. 166a(e). Mrs. Poindexter conceded she was unable to obtain expert testimony to controvert Dr. Washburn.
Upon a careful re-reading of Dr. Washburn's deposition, we affirm the granting of the motion for summary judgment in favor of Dr. Foster and Dr. Lange. We deem it appropriate and paramount to stress that the Plaintiff's petition for relief is based solely on negligent care in the treatment rendered to Mrs. Poindexter. We conclude that the Appellees have, by competent, expert medical testimony, negated, under the proper summary judgment practice, the alleged negligent care. Furthermore, the Appellees have negated the proximate cause fact issue as to any damages sustained by the Appellant. The Appellant has totally failed to respond with competent, expert medical testimony to preserve the proximate cause issue in her favor.
In summary, the Defendants below were entitled to prevail on their motions for summary judgment if they established as a matter of law that there existed no genuine issue of material fact in relationship to one or more of the essential elements of the Plaintiff's cause of action. See Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). The Defendants below successfully negated two of the elements of the Plaintiff's alleged negligent medical malpractice cause of action: firstly, a breach of the standard of care and, secondly, proximate causation. Since the Defendants had negated these two necessary elements of the Plaintiff's cause of action, then it was incumbent upon the Plaintiff to produce competent, expert medical testimony that would, in turn, raise issues of fact with regard to negligence and proximate cause; this the Plaintiff failed to do. See Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App.Dallas 1979, no writ); Gandara v. Novasad, 752 S.W.2d 740 (Tex.App.Corpus Christi 1988, no writ); Shook v. Herman, 759 S.W.2d 743 (Tex.App.Dallas 1988, no writ).
AFFIRMED.
|
818 F.2d 29Unpublished 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.Dewey Henderson SMITH, Plaintiff--Appellant,v.Thomas R. ISRAEL, Defendant--Appellee.
No. 86-6828.
United States Court of Appeals, Fourth Circuit.
Submitted March 24, 1987.Decided May 6, 1987.
Before HALL, SPROUSE and WILKINS, Circuit Judges.
Dewey Henderson Smith, appellant pro se.
PER CURIAM:
1
Dewey Henderson Smith, a Virginia inmate, seeks to appeal from the district court's dismissal without prejudice of his civil rights complaint.
2
Smith instituted this action on September 8, 1986, and requested leave to proceed in forma pauperis. At the court's request, the Virginia Department of Corrections furnished a record of Smith's inmate trust fund. The record showed that deposits totaling $123.13 had been made in the six months immediately preceding the submission of the complaint. Pursuant to Evans v. Croom, 650 F.2d 521 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982), the court on October 2, 1986, ordered Smith to pay a partial filing fee of $18.47 or present any special circumstances which would justify a different payment or no payment at all.
3
On October 7, 1986, Smith sought an explanation of the district court's method of arriving at the amount of the partial filing fee. In an October 14, 1986, order, the district court explained its method and directed Smith to pay the partial filing fee within twenty days of the date of the order. On December 2, 1986, the district court, having received no response from Smith, dismissed the action without prejudice.
4
As the fee assessment procedure followed by the district court comported with the system approved in Evans v. Croom, we affirm the district court's dismissal of the action for failure to pay the partial fee. Because the dispositive issues recently have been decided authoritatively, we dispense with the oral argument.
5
AFFIRMED.
|
652 F.Supp.2d 1308 (2009)
Damon SMITH, Plaintiff,
v.
James PEFANIS, et al., Defendants.
Civil Action No. 1:08-CV-1042-JOF.
United States District Court, N.D. Georgia, Atlanta Division.
August 31, 2009.
*1313 Benjamin Alexander Stone, Thomas J. Munger, Munger & Stone, Atlanta, GA, for Plaintiff.
David C. Ates, David Ates, P.C., Atlanta, GA, for Defendants.
OPINION AND ORDER
J. OWEN FORRESTER, Senior District Judge.
This matter is before the court on Defendant AME Financial Corporation's motion for partial summary judgment [80]; Plaintiff's motion for contempt sanctions against Ron Eckland, Atlanta Real Estate Law Group, LLC, David Ates, and The Jeffries Group [94]; the Non-Final Report and Recommendation of Magistrate Judge Russell G. Vineyard [116]; Defendants' motions for extension of time [118], [119], and [120]; Defendants' motion for leave to file objections out of time [125]; and Defendants' objections to the Non-Final Report and Recommendation [122].
Plaintiff, Damon Smith, filed suit against Defendants James Pefanis, AME Financial Corporation and Georgia Mutual Mortgage Corporation, on March 17, 2008, alleging he suffered a sexually hostile work environment, sexual harassment resulting in a tangible employment action, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Plaintiff also asserted state law causes of action of negligent hiring and retention, assault and battery, intentional infliction of emotional distress, and failure to provide plaintiff with a safe work environment in violation of O.C.G.A. § 34-2-10. Defendants moved for summary judgment as to all Plaintiff's claims save for assault and battery.
Magistrate Judge Russell G. Vineyard issued a Report and Recommendation recommending that Defendants' motion for summary judgment be granted in part and denied in part. He recommends denying Defendants' motion as to Plaintiff's hostile work environment, retaliation, and negligent hiring claims. He recommends granting Defendants' motion as to Plaintiff's claims of intentional infliction of emotional distress and failure to provide plaintiff with a safe work environment in violation of O.C.G.A. § 34-2-10. Magistrate Judge Vineyard also considered Plaintiff's motion for contempt for failure of certain Defendants and non-defendants to comply with the Magistrate Judge's orders as to subpoenas issued by Plaintiff pursuant to Federal Rule of Civil Procedure 45. He certified the facts surrounding the subpoena dispute and recommended that the district court issue a show cause order.
Motion for Summary Judgment
Plaintiff, an African-American male, worked as an account executive for AME and Georgia Mutual Mortgage Corporation from August 2007 until November 30, 2007. The Report and Recommendation sets forth in great detail the allegations made by Plaintiff to support his sexual harassment claim. This testimony includes direct propositions by Defendant Pefanis, a homosexual, as well as physical touching and rubbing of Plaintiff's body, and simulation of anal sex against Plaintiff's body. The Magistrate Judge concluded that Plaintiff had proffered sufficient evidence to show that Defendant Pefanis's actions were pervasive, severe and "based on sex." (Plaintiff's testimony is similar to that adduced in a case filed by another plaintiff against the same defendants. See Forsberg v. Pefanis, Civil Action No. 07-CV-3116-JOF-RGV. In Forsberg, Magistrate Judge Vineyard found that Defendant Pefanis's actions were "based on sex" because he harassed females in order to humiliate them and males for sexual gratification. In Forsberg, in an order dated March 27, 2009, *1314 the court adopted inter alia this portion of the Magistrate Judge's order.)
As to his retaliation claim, Plaintiff testified that after innumerable propositions by Defendant Pefanis, Plaintiff once again strongly rejected Pefanis's advances in the middle of November 2007. Plaintiff was terminated two weeks later. Defendants offered that Plaintiff was terminated for performance reasons because he did not meet his sales quota during the three months he was employed. Defendants further asserted that they had put Plaintiff on a performance improvement plan and warned him that his job was in jeopardy. Plaintiff testified that he was never told by anyone that his performance was deficient. He claims he was never put on a performance improvement plan, and, indeed, none was produced during discovery. He also asserts that his sales numbers met or exceeded the quotas as he understood them. Finally, he testified that at the time of his termination, none of Defendants' employees told him he was being terminated for poor performance, rather they stated that he was being let go because "Pefanis want[ed] him gone" and that he was not a "good fit." Defendants' Human Resources Supervisor, in fact, told Plaintiff she did not agree with the decision to terminate him.
Defendants object to the Report and Recommendation for three reasons.[1] First, Defendants contend that the Magistrate Judge erred in recommending the sexual harassment claim proceed because they argue Defendant Pefanis is an "equal opportunity offender" and therefore his conduct cannot be said to be "based on sex." Second, Defendants contend that the Magistrate Judge erred in recommending that Defendants' motion for summary judgment as to retaliation be denied because there are disputed facts as to the legitimacy of the reasons given for Plaintiff's termination. Finally, Defendants seek the benefit of the "same decision" defense to argue that Plaintiff will not be able to establish back pay or damages because he cannot work for a mortgage company anymore.
With respect to Plaintiff's sexual harassment claim, the court notes that Defendants do not object to the Magistrate Judge's conclusion that Plaintiff set forth sufficient evidence on pervasiveness and severity, but rather only object to the Magistrate Judge's finding that Defendant Pefanis's actions were "based on sex." For the reasons given in the Magistrate Judge's Report and Recommendation, see pages 1324-26, the court agrees that Plaintiff has presented sufficient evidence from which a jury could conclude that Defendant Pefanis's actions were "based on sex" and he is not an "equal opportunity offender."
Defendants object to the Report and Recommendation on Plaintiff's retaliation claim arguing only that there was not sufficient evidence from which a jury could conclude that Defendants' reasons for termination were pretextual. The court disagrees. The Magistrate Judge reviewed Plaintiff's ample evidence that job performance was not the real reason for *1315 Plaintiff's termination, including Plaintiff's testimony that he was never told his job was in danger; he met the sales quotas set out for him by Defendants; he was never placed on a performance improvement plan and none was produced in discovery; and at the time of his termination, he was not told his firing was based on his job performance. This is sufficient evidence from which a reasonable jury could conclude that Defendants' stated reasons for termination were pretextual.
Finally, as for Defendants' "same decision" objection, the court notes that the Magistrate Judge found that Defendants waived the defense on summary judgment because they made no argument in their briefs concerning the back pay issue. On this basis alone, the court can reject any notion of the "same decision" defense as Defendants have not previously raised it in the litigation. See Williams v. McNeil, 557 F.3d 1287 (11th Cir.2009) (holding district court has discretion to decline to consider party's argument when argument was not presented first to magistrate judge, but rather was first raised in party's objections to magistrate judge's report and recommendation). In any event, Defendants do no better in their objections. Defendants vaguely allude to the fact that Plaintiff cannot be hired to work at a mortgage company without any further explanation. In his response to Defendants' objections, Plaintiff presumes Defendants' argument is based on the fact that many years ago, Plaintiff was convicted of the felony of criminal mischief. However, Defendants were aware of Plaintiff's prior conviction when he was hired, and therefore, they cannot claim the benefit of the "same decision" defense.
Motion for Contempt
Plaintiff moves for civil and criminal contempt sanctions pursuant to Federal Rule of Civil Procedure 45(e) and 18 U.S.C. § 401 against non-parties Ron Eckland; Atlanta Real Estate Law Group, LLC; The Jeffries Group, financial accountants; and David Ates, Defendants' attorney, based on their failure to comply with the October 30, 2008, order of the Magistrate Judge directing them to produce any and all documents responsive to the August 11, 2008, Rule 45 subpoenas. In his Report and Recommendation, the Magistrate Judge reviews the materials he directed to be produced pursuant to these subpoenas. See Report and Recommendation, at 1336-38. He then discusses the parties' briefs as to the motion for civil and criminal contempt, as well as a hearing held before the Magistrate Judge on January 27, 2009. Id. at 1338-41. Based on his review of this procedural and factual history, the Magistrate Judge concluded that Plaintiff sufficiently established a prima facie case that Eckland, the Atlanta Real Estate Law Group, LLC, The Jeffries Group, and David Ates failed to comply with the Court's October 30, 2008, order. Therefore, he recommends that the district court issue an order directing them to show cause as to why they should not be adjudged in contempt. The Magistrate Judge did not recommend that criminal contempt sanctions be applied. See id. at 1342 n. 23. But for a fleeting reference in a footnote, Defendants did not object to this portion of the Magistrate Judge's Report and Recommendation.
Pursuant to 28 U.S.C. § 636(e)(6)(B)(iii), in such cases where the district judge has assigned pretrial matters to the magistrate judge and acts pertaining to these matters are deemed to constitute civil contempt:
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be *1316 held in contempt by reason of the facts so certified.
Id. The court agrees with the recommendation of the Magistrate Judge that Eckland, the Atlanta Real Estate Law Group, LLC, The Jeffries Group, and David Ates should show cause as to why civil contempt sanctions should not be entered against them for failure to comply with the October 30, 2008, order of Magistrate Judge Russell G. Vineyard.
Conclusion
In sum, the court ADOPTS the Report and Recommendation of the Magistrate Judge as the ORDER of this court. The court GRANTS IN PART AND DENIES IN PART Defendants' motion for partial summary judgment [80]. The claims remaining in the case are sexual harassment and retaliation in violation of Title VII, negligent retention and hiring, and assault and battery.
The court agrees with the Magistrate Judge's recommendation that sufficient evidence exists for the court to issue a show cause order as to why Ron Eckland; Atlanta Real Estate Law Group, LLC; The Jeffries Group, financial accountants; and David Ates should not be found in contempt. The court DIRECTS Plaintiff and Ron Eckland, Atlanta Real Estate Law Group, LLC, The Jeffries Group, and David Ates, to appear in Courtroom 1905 on Wednesday, September 30, 2009, at 10:30 a.m. for a hearing on the motion for contempt [94].
The court GRANTS IN PART AND DENIES IN PART Defendant AME Financial Corporation's motion for partial summary judgment [80]; ADOPTS the Non-Final Report and Recommendation of Magistrate Judge Russell G. Vineyard [116] as the ORDER of this court; GRANTS Defendants' motions for extension of time [118], [119], and [120]; GRANTS Defendants' motion for leave to file objections out of time [125]; and REJECTS Defendants' objections to the Report and Recommendation [122].
MAGISTRATE JUDGE'S NON-FINAL REPORT, RECOMMENDATION, AND ORDER
RUSSELL G. VINEYARD, United States Magistrate Judge.
Plaintiff Damon Smith brings this employment discrimination action against James Pefanis ("Pefanis"), AME Financial Corporation ("AME"), and Georgia Mutual Mortgage Corporation ("Georgia Mutual"),[1] alleging he suffered a sexually hostile work environment, sexual harassment resulting in a tangible employment action, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. [Doc. 1 ¶¶ 39-43, 59-62]. Plaintiff also asserts state law claims of negligent hiring and retention, assault and battery, intentional infliction of emotional distress, and failure to provide plaintiff with a safe working environment in violation of O.C.G.A. § 34-2-10. [Id. ¶¶ 44-58]. Defendants have moved for partial summary judgment as to all of plaintiffs claims except his claim for assault and battery, [Doc. 80],[2] which plaintiff opposes, [Doc. *1317 83]. For the reasons set forth herein, it is RECOMMENDED that defendants' motion, [Doe. 72], be GRANTED in part and DENIED in part.[3] Plaintiff has filed a motion for civil and criminal contempt and for sanctions, [Doc. 94], against Ron Eckland ("Eckland"), Atlanta Real Estate Law Group, LLC, ("ARELG"), attorney David Ates ("Ates"), and the Jeffries Group ("Jeffries"), which Eckland, ARELG, and Ates oppose, [Doc. 97].[4] For the reasons stated herein, it is RECOMMENDED that plaintiffs motion, [Doc. 94], be GRANTED in part and DENIED in part.
I. FACTUAL BACKGROUND
Plaintiff, an African-American male, worked as an account executive for AME and Georgia Mutual from August 2007 until November 30, 2007. [Doc. 80-3 ¶¶ 6, 71; Doc. 83-3 ¶ 1; Doc. 81-5 (Abbott Decl.) ¶ 4].[5] AME and Georgia Mutual are *1318 in the business of providing mortgage brokerage services. [Doc. 1 ¶¶ 6-7]. Pefanis is the Chief Executive, Financial Officer, and co-owner of AME and Georgia Mutual. [Doc. 1 ¶ 5; Doc. 83-3 ¶¶ 2-3; Forsberg Doc. 73-4 (Forsberg Decl.) ¶ 6; Forsberg Doc. 73-5 (Brown Decl.) ¶ 2]. Plaintiff reported to Robert Anderson ("Anderson"), AME's Wholesale Manager. [Doc. 80-3 ¶ 7; Doc. 81-4 (Martin Decl.) ¶ 5; Doc. 81-15 (Anderson Decl.) ¶ 2]. After working at AME for several weeks, plaintiff was transferred from outside sales to the inside sales department. [Doc. 80-3 ¶ 8; Doc. 115 (Pl.'s Dep.) at 295-96, 336-37].[6]
Plaintiff alleges that Pefanis engaged in objectionable behavior of a racial and sexual nature before and during plaintiff's employment at AME and Georgia Mutual. [Doc. 83-3 ¶ 2; Forsberg Doc. 73-4 ¶¶ 7, 22-23; Forsberg Doc. 73-5 ¶¶ 4-7; Forsberg Doc. 73-6 (Cross Decl.) ¶¶ 8-17; Forsberg Doc. 73-7 (Felion Decl.) ¶¶ 3-7]. For example, plaintiff claims that prior to his employment, Pefanis, who is homosexual, sexually harassed numerous male and female employees in the presence of AME management, including kissing employees, repeatedly grabbing and groping the genitalia and other private body parts of male and female employees, exposing his genitalia to employees, telling employees he wanted to have sex with them, thrusting his crotch into employees' backsides, and on at least one occasion, forcibly taking off a male employee's pants and sticking his finger in the employee's anus. [Doc. 83-3 ¶¶ 5-6, 8; Forsberg Doc. 73-4 ¶¶ 6-20; Forsberg Doc. 73-6 ¶¶ 8-13, 15-17; Forsberg Doc. 73-7 ¶¶ 3-5, 7; Doc. 73-5 ¶¶ 4-7]. Plaintiff claims that because Pefanis is homosexual, he harasses males and females for different purposes. [Doc. *1319 83-3 ¶¶ 4, 7; Forsberg Doc. 73-4 ¶ 7]. Specifically, plaintiff claims that Pefanis sexually harasses males for his sexual gratification, whereas he sexually harasses females to demean, degrade, and subordinate them. [Doc. 83-3 ¶¶ 4, 7; Forsberg Doc. 73-4 ¶ 7].[7] Pefanis reportedly told employees at a meeting in April 2008 that if they did not like his conduct in the workplace, "there's the door and you can go f____ yourself." [Doc. 83-3 ¶ 10; Forsberg Doc. 73-7 ¶ 10].
After defendants hired plaintiff and he had already started working at AME, Pefanis learned from a background check that plaintiff previously had drug charges filed against him that were ultimately dismissed, and also learned from plaintiff that he had been convicted of the felony of criminal mischief as a teenager when he fired a gun at a car. [Doc. 80-3 ¶¶ 59, 67, 70, 92; Doc. 83-3 ¶ 49; Doc. 115 at 94-97, 309-10, 313, 318, 323-24].[8] Plaintiff offered to provide two other background checks that had been performed by prior prospective employers that did not include the felony charge. [Doc. 80-3 ¶ 93; Doc. 115 at 321]. Pefanis agreed to keep one of those prior reports in plaintiff's file and to retain plaintiff, but repeatedly told him, "Don't forget what I did for you, you little drug dealer." [Doc. 80-3 ¶¶ 93, 95; Doc. 83-3 ¶ 51; Doc. 115 at 321, 324-27]. Plaintiff complains that on his second day of employment, Pefanis began directing sexually inappropriate conduct toward him. [Doc. 83-3 ¶ 12; Doc. 115 at 225-31]. Specifically, plaintiff claims that during his employment, Pefanis sexually propositioned him on at least four occasions, making statements such as, "Are we going to have sex or not?" and "Let's do it," and inappropriately touched him on more than five occasions. [Doc. 80-3 ¶¶ 90-91; Doc. 83-3 ¶¶ 47-48; Doc. 115 at 303-10].
Plaintiff also claims that in the presence of his direct supervisor, Anderson, Pefanis embarrassed and offended him by stating, "You're gay aren't you?," and commenting that, based on plaintiffs style of shoes, "he has to be gay." [Doc. 80-3 ¶ 72; Doc. 83-3 ¶ 13; Doc. 115 at 225-31]. During this time, plaintiff claims he also observed Pefanis make numerous sexually inappropriate and crude comments about other male employees, such as announcing they have a "nice butt," and parading a male employee around the office stating, "Does this look like a 40-year old butt?" [Doc. 80-3 ¶ 79; Doc. 83-3 ¶¶ 14, 17; Doc. 115 at 232-33, 247-48].
*1320 According to plaintiff, Pefanis made such sexual comments to and/or about other employees in his presence on a daily basis and would frequently talk about sex in the office. [Doc. 83-3 ¶¶ 15-16; Doc. 115 at 251-52, 259]. In fact, plaintiff claims that during his entire 90-day period of employment with AME, he witnessed Pefanis engage in sexually offensive conduct on at least fifty occasions. [Doc. 80-3 ¶ 83; Doc. 115 at 261-62]. For example, Pefanis allegedly told plaintiff that he had sex with Anderson and Anderson had a small penis, and he wished it was bigger. [Doc. 80-3 ¶¶ 77; Doc. 83-3 ¶¶ 25-26; Doc. 115 at 242-43, 245-46]. Plaintiff claims Pefanis repeatedly asked him if he had a big penis. [Doc. 83-3 ¶ 63; Doc. 83-4 at 6]. Pefanis allegedly engaged in this behavior on numerous occasions in front of his management team, including his Human Resources Manager Phyllis Lee ("Lee"). [Doc. 83-3 ¶¶ 19; Doc. 115 at 234].
According to plaintiff, Pefanis also began to physically touch him. For example, Pefanis would sit next to plaintiff, place his hands on plaintiff's thigh, and repeatedly rub his hands back and forth on plaintiffs thigh. [Doc. 80-3 ¶ 74; Doc. 83-3 ¶¶ 21-22; Doc. 115 at 239-42]. Pefanis would also make statements to plaintiff while touching him such as "You know you're my little drug dealer. You know I did this for you. Don't forget what I did for you," "We should have sex," and "I will make sure you enjoy it." [Doc. 83-3 ¶¶ 52, 62; Doc. 115 at 324-25; Doc. 83-4 at 6-7]. The first time Pefanis engaged in this type of behavior, plaintiff told Pefanis that he was married and not gay. [Doc. 80-3 ¶ 75; Doc. 83-3 ¶ 23; Doc. 115 at 241-42]. Thereafter, plaintiff repeatedly told Pefanis that he was not gay, but Pefanis' conduct continued. [Doc. 83-3 ¶ 24; Doc. 115 at 242-43].
On one occasion, plaintiff was in Anderson's office when Pefanis walked into the office, rubbed his body against plaintiffs body, and stated "I got two tall handsome black guys in my office. You know I want both of you together." [Doc. 80-3 ¶ 84; Doc. 83-3 ¶¶ 31-32; Doc. 115 at 262-65]. Plaintiff, who was humiliated, left the office. [Doc. 83-3 ¶ 34; Doc. 115 at 264]. Anderson later told plaintiff that Pefanis should not have said that and apologized on Pefanis' behalf for his conduct. [Doc. 80-3 ¶ 84; Doc. 83-3 ¶ 35; Doc. 115 at 265-68]. He also advised plaintiff that he had talked to Pefanis on more than one occasion about Pefanis' conduct. [Doc. 83-3 ¶ 36; Doc. 115 at 267]. Plaintiff told Anderson that apologizing to him for Pefanis' conduct was not a satisfactory answer to the conduct. [Doc. 83-3 ¶ 38; Doc. 115 at 265]. Thereafter, plaintiff reported this incident to Human Resources Manager Lee to no avail. [Doc. 83-3 ¶ 39; Doc. 115 at 266].
On another occasion, plaintiff attended a closed-door team meeting with Pefanis, Anderson, and Inside Sales Manager Sean Martin. [Doc. 80-3 ¶ 5; Doc. 83-3 ¶ 40; Doc. 115 at 251-54; Doc. 81-4 ¶ 1]. According to plaintiff, at the beginning of the meeting, Pefanis stated, "Does anyone have a penis I can put in my mouth?" [Doc. 80-3 ¶ 80; Doc. 83-3 ¶ 40; Doc. 115 at 251-54]. Additionally, at a birthday luncheon for an AME employee, Pefanis spoke about a sex toy and then turned to plaintiff and stated, "Do you even like sex?" [Doc. 83-3 ¶¶ 43-44, 46; Doc. 115 at 332; Doc. 68 (Pefanis Dep.) at 74-75]. During this same luncheon, Pefanis also referenced a sushi roll that had been served and told plaintiff, "If you like sex you are going to like that roll." [Doc. 80-3 ¶ 38; Doc. 83-3 ¶ 45; Doc. 68 at 74]. On another occasion, Pefanis allegedly asked plaintiff if he was going to have sex with him and again reminded him of the favor he had done for his "little drug dealer." [Doc. 83-3 ¶ 53; Doc. 115 at 323-31]. According *1321 to plaintiff, he declined Pefanis' advances, and Pefanis again stated, "Don't forget the favor I have done for you." [Doc. 83-3 ¶ 54; Doc. 115 at 323-31].
In a separate incident, plaintiff claims that Pefanis approached him in a hallway, grabbed plaintiff from behind, forced himself against plaintiff with his pelvic area, pressing his crotch against plaintiffs buttocks, simulating anal sex. [Doc. 80-3 ¶ 84; Doc. 83-3 ¶ 55; Doc. 115 at 269-72]. Plaintiff used his elbow to push Pefanis away and said, "Get off of me!" [Doc. 83-3 ¶ 55; Doc. 115 at 272]. According to plaintiff, Lee witnessed the incident and later pulled plaintiff aside and apologized for Pefanis' conduct. [Doc. 80-3 ¶ 85; Doc. 83-3 ¶¶ 57-58; Doc. 115 at 272-73]. Lee stated that she wished she could do something, but that her "job is on the line just as yours is." [Doc. 83-3 ¶¶ 59, 74; Doc. 115 at 273]. Lee further stated, "What can I do? I am his employee." [Doc. 83-3 ¶¶ 59; Doc. 115 at 273].
In addition to the previous incidents, Pefanis, on one occasion, reached from behind plaintiff during a team meeting, and, in the presence of other employees, rubbed plaintiff's chest. [Doc. 80-3 ¶ 91; Doc. 83-3 ¶ 60; Doc. 115 at 309-10]. Pefanis also smacked plaintiff on the buttocks during another incident and stated, "Nice ass. Let's try it." [Doc. 80-3 ¶ 86; Doc. 83-3 ¶ 61; Doc. 83-4 at 6]. Whenever plaintiff had to enter Pefanis' office, Pefanis would ask plaintiff to lock his door while plaintiff was in the office "so that no one would see." [Doc. 83-3 ¶ 64; Doc. 83-4 at 7]. Pefanis' actions and conduct disgusted and offended plaintiff, and plaintiff informed Pefanis that he was offended, but Pefanis ignored plaintiff and continued his actions toward him. [Doc. 83-3 ¶¶ 65-66; Doc. 83-4 at 7].
AME's sexual harassment policy instructed its employees to report any harassment to Pefanis as AME's Chief Financial Officer. [Doc. 83-3 ¶ 68; Doc. 83-4 at 9]. Plaintiff claims that Pefanis' actions were often witnessed by AME's management team, including Anderson and Lee. [Doc. 83-3 ¶ 67; Doc. 115 at 256]. Therefore, plaintiff did not believe there was any reason to report Pefanis' conduct. [Doc. 83-3 ¶ 67; Doc. 115 at 256]. Nevertheless, plaintiff repeatedly reported Pefanis' conduct to at least three different members of AME's management team, including Anderson, Lee, and Abbott. [Doc. 80-3 ¶ 81; Doc. 83-3 ¶ 69; Doc. 115 at 256-59]. Specifically, plaintiff asked Anderson to do something about Pefanis' conduct, but Anderson stated, "that's just Jim," and made it clear that plaintiff would just have to tolerate Pefanis' actions if he wanted to continue to work at AME. [Doc. 83-3 ¶ 70; Doc. 83-4 at 4-5]. Plaintiff also had lengthy conversations with Lee about Pefanis' conduct. [Doc. 83-3 ¶ 71; Doc. 115 at 258]. When plaintiff first complained to Lee within weeks of beginning his employment, Lee also stated, "That's just Jim. He has always been like that." [Doc. 83-3 ¶ 72; Doc. 83-4 at 4]. Lee likewise made it clear that plaintiff would just have to tolerate Pefanis' conduct. [Doc. 83-3 ¶ 73; Doc. 83-4 at 4].
Finally, plaintiff alleges that approximately two weeks prior to his termination from his employment with AME, an incident occurred in Anderson and Lee's presence. [Doc. 83-3 ¶ 75; Doc. 115 at 292-94]. Plaintiff was discussing a business issue with Anderson when Pefanis approached plaintiff, looked him in the eye, and stated, "Are we going to have sex or what?" [Doc. 80-3 ¶ 86; Doc. 83-3 ¶ 76; Doc. 115 at 293]. Plaintiff replied, "No" and immediately left the office building. [Doc. 83-3 ¶ 76; Doc. 115 at 293].
The following day, plaintiff returned to work and Anderson approached him and asked him to have lunch with him that day. [Doc. 80-3 ¶ 87; Doc. 83-3 ¶ 78; Doc. 115 *1322 at 293-94]. During lunch, Anderson informed plaintiff that while he was doing a good job and his numbers looked good, "Pefanis wants you gone." [Doc. 80-3 ¶ 87; Doc. 83-3 ¶¶ 77, 79, 91; Doc. 115 at 293-96]. Anderson also advised plaintiff that he should "stay the course" and "keep doing what you're doing." [Doc. 80-3 ¶ 87; Doc. 83-3 ¶¶ 80; Doc. 115 at 295]. Anderson did not give plaintiff a specific reason that Pefanis wanted him gone, and admitted that Pefanis had no reason to let him go. [Doc. 83-3 ¶ 80; Doc. 115 at 295].
A few days later, on November 30, 2007, Abbott approached plaintiff and asked to speak with him. [Doc. 83-3 ¶ 81; Doc. 115 at 336; Doc. 81-5 ¶ 15]. At this time, Abbott advised plaintiff "we're actually letting you go today," and said, "sorry things did not work out," but "everybody is not a good fit." [Doc. 83-3 ¶ 82; Doc. 115 at 337]. Abbott did not specifically provide plaintiff with a reason for his termination other than he was "not a good fit." [Doc. 83-3 ¶ 83; Doc. 115 at 337]. Abbott did state that he wanted plaintiff to "ramp up," meaning increase his sales quota, and plaintiff responded by pointing out that he had been on target with his numbers the entire time he had been with AME. [Doc. 83-3 ¶ 84; Doc. 115 at 337].[9] Abbott acknowledged that plaintiff had reached his target goals while at AME, but stated that he wished plaintiff had done more. [Doc. 83-3 ¶ 84; Doc. 115 at 337]. After this conversation, plaintiff packed up his things and left the office building. [Doc. 83-3 ¶ 84; Doc. 115 at 337].[10]
After his termination, plaintiff spoke with Lee. [Doc. 83-3 ¶ 85; Doc. 83-4 at 11]. Lee told plaintiff that she did not agree with the decision to terminate him, and that she did not even know about the decision until defendants had already terminated him. [Doc. 83-3 ¶ 86; Doc. 83-4 at 11]. In December 2007, plaintiff also communicated with Anderson in order to request a letter of recommendation, which Anderson provided for plaintiff. [Doc. 83-3 ¶ 87; Doc. 83-4 at 11; Doc. 81-15 ¶¶ 60-62]. Thereafter, on March 17, 2008, plaintiff filed the instant action against defendants.
II. DISCUSSION
A. Defendants' Motion for Partial Summary Judgment
Plaintiff contends that he endured a hostile work environment because he was sexually harassed by Pefanis, the co-owner of AME and Georgia Mutual. [Doc. 83 at 8; Doc. 1 ¶¶ 39-43]. He further contends that he suffered a tangible employment *1323 action when he was terminated from his employment with AME as a result of Pefanis' alleged sexual harassment. [Doc. 83 at 8; Doc. 1 ¶¶ 32, 39-43]. Plaintiff also alleges that defendants retaliated against him by terminating his employment for engaging in protected activity by opposing defendants' violations of Title VII. [Doc. 1 ¶¶ 60-61]. Finally, plaintiff alleges that defendants negligently hired and/or retained Pefanis with knowledge of Pefanis' practices of sexual harassment and assault and battery, intentionally inflicted emotional distress, and failed to provide him with a safe working environment in violation of O.C.G.A. § 34-2-10. [Id. ¶¶ 45, 54, 57]. Defendants seek summary judgment on all of plaintiffs claims other than his claim of assault and battery. [Doc. 80-2]. The Court will address the merits of defendants' motion with regard to each of these claims.
1. Summary Judgment Standard
Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the initial burden of demonstrating the absence of any genuine issue of material facts, upon which the non-moving party must then submit specific facts showing a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a party "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[,]" summary judgment should be granted. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In ruling on a motion for summary judgment, the Court views all evidence in the light most favorable to and makes all reasonable inferences in the favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003).
2. Title VII Claims
a. Sexual Harassment
"Title VII prohibits sex-based discrimination that alters the terms and conditions of employment." Nurse "BE" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1308 (11th Cir.2007). "Generally, sexual harassment comes in two forms: harassment that does not result in a tangible employment action (traditionally referred to as `hostile work environment' harassment), and harassment that does result in a tangible employment action (traditionally referred to as `quid pro quo' harassment)." Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 508 (11th Cir.2000). See also Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir.2006). See generally Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751-54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (noting that the terms "quid pro quo" and "hostile work environment" retain limited utility in "making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether").[11] "An employer accused of *1324 quid pro quo harassment will be vicariously liable per se, and will not be permitted to assert an affirmative defense if the tangible employment action resulted from his sexual harassment." Donaldson v. CDB, Inc., Civil Action No. 2:07CV122-KS-MTP, 2008 WL 2704829, at *5 (S.D.Miss. July 8, 2008). "An employer accused of hostile work environment harassment will also be held vicariously liable unless he can prove both prongs of the Ellerth/Faragher defense...."[12]Id. Here, plaintiff relies on both forms to support his sexual harassment claim. Defendants only challenge whether plaintiff has established a prima facie case of hostile work environment and make no argument with regard to plaintiff's tangible employment action claim.
i. Hostile Work Environment
In order to establish a prima facie case of hostile work environment sexual harassment, plaintiff must show: (1) he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment complained of was based upon his sex; (4) the harassment complained of was sufficiently severe or pervasive to alter the terms and conditions of employment; and (5) the employer "knew or should have known of the harassing conduct but failed to take prompt remedial action." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275, 1278 (11th Cir.2002) (citing Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.2000)). See also Criswell v. Intellirisk Mgmt. Corp., 286 Fed.Appx. 660, 661-62 (11th Cir.2008) (unpublished); Jones v. City of Lakeland, 318 Fed.Appx. 730, 734-35 (11th Cir.2008) (unpublished). On summary judgment, defendants dispute only the third and fourth elements. [Doc. 80-2 at 5-13].
(a) Based on Sex
Defendants argue that the alleged harassment was not directed at plaintiff because of his sex since plaintiff alleges that Pefanis allegedly harassed both male and female employees. [Doc. 80-2 at 5-6; Doc. 90 at 2-6]. Specifically, plaintiffs evidence shows that Pefanis repeatedly grabbed and groped the genitalia and other private body parts of both male and female employees. [Forsberg Doc. 73-4 ¶¶ 7, 18; Forsberg Doc. 73-7 ¶¶ 4-5; Forsberg Doc. 73-6 ¶ 13; Forsberg Doc. 73-5 ¶ 4]. Therefore, defendants contend that plaintiff cannot show that any alleged harassment he suffered was based on his sex. The Court disagrees.
"Harassment is not `automatically discrimination because of sex merely because the words used have sexual content or connotations. The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Petcou v. C.H. Robinson Worldwide, Inc., Civil Action File No. 1:06-CV-2157-HTW-GGB, 2008 U.S. Dist. LEXIS 8885, at *23 (N.D.Ga. Feb. 5, 2008) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). See also Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1302 (11th Cir.2007). In fact, "what matters is whether the harassment that is visited upon members of different races or genders *1325 is truly equal in terms of ... prevalence, severity and impact." Wentworth v. Hedson, 493 F.Supp.2d 559, 568 (E.D.N.Y. 2007). "Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination [on the basis of sex]." Oncale, 523 U.S. at 81, 118 S.Ct. 998 (internal marks omitted); see also Petcou, 2008 U.S. Dist. LEXIS 8885, at *23-24. Therefore, Title VII is only concerned with "`whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Givens v. Chambers, 548 F.Supp.2d 1259, 1279 (M.D.Ala.2008) (quoting Baldwin, 480 F.3d at 1302).
Courts have found that harassing conduct that is equally offensive to male and female employees or that is inflicted on both sexes is not harassment based on sex. Holman v. Indiana, 211 F.3d 399, 403 (7th Cir.2000); Henson v. City of Dundee, 682 F.2d 897, 904, 905 n. 11 (11th Cir.1982); Myers v. Office Depot, Inc., No. 06-CV-11252, 2007 WL 2413087, at *4 (E.D.Mich. Aug. 21, 2007); Donlow v. SBC Commc'ns, Inc., No. 05-C-0548, 2006 WL 1479548, at *2 (E.D.Wis. May 25, 2006). "On the other hand, `[t]he mere fact that men and women are both exposed to the same offensive circumstances on the job site ... does not mean that, as a matter of law, their work conditions are necessarily equally harsh.'" Petcou, 2008 U.S. Dist. LEXIS 8885, at *24-25 (quoting Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004)). See also Kampmier v. Emeritus Corp., 472 F.3d 930, 940-41 (7th Cir.2007). As previously mentioned, the critical inquiry is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale, 523 U.S. at 80, 118 S.Ct. 998. Thus, the courts that have found that Title VII does not cover the "equal opportunity" or "bisexual" harasser did so on the basis that members of one sex were exposed to identical disadvantageous terms or conditions of employment as the other sex. Holman v. State of Indiana, 24 F.Supp.2d 909, 913 (N.D.Ind.1998); Donlow, 2006 WL 1479548, at *2; Fitzpatrick v. Winn-Dixie Montgomery, Inc., 153 F.Supp.2d 1303, 1305 (M.D.Ala.2001). However, that is not the case here.
In this case, plaintiff has presented sufficient evidence to establish that he was harassed based on his sex. "In order to establish a same-sex sexual harassment claim based [on] sexual desire, a plaintiff must offer credible evidence of the harasser's homosexuality." EEOC v. Family Dollar Stores, Inc., Civil Action File No. 1:06-CV-2569-TWT, 2008 WL 4098723, at *13 (N.D.Ga. Aug. 28, 2008). It is undisputed that Pefanis is homosexual. [Doc. 83-3 ¶¶ 2-3; Forsberg Doc. 73-4 ¶ 6]. While there is evidence that Pefanis regularly groped both male and female employees, his alleged harassment of plaintiff was of a different character. Indeed, "[a] harasser may well make sexually demeaning remarks and putdowns to the plaintiff for sex-neutral reasons ... but he is far less likely to make sexual advances without regard to sex." La Day v. Catalyst Tech., Inc., 302 F.3d 474, 480 (5th Cir.2002) (emphasis omitted). Plaintiff's evidence shows that Pefanis used sex-specific language toward him by repeatedly propositioning plaintiff for sex and asking him if he had a big penis. [Doc. 83-3 ¶ 63; Doc. 83-4 at 6]. Pefanis regularly made statements such as "We should have sex," "I will make sure you enjoy it," and "Nice ass. Let's try it," and asked him if he was going to have sex with him. [Doc. 80-3 ¶ 86; Doc. 83-3 ¶¶ 52-53, 61-62, 76; Doc. 115 at 293, 323-31; Doc. 83-4 at 6-7]. Pefanis also grabbed plaintiff from behind, *1326 forced himself against plaintiff with his pelvic area, pressing his crotch against plaintiffs buttocks, simulating anal sex. [Doc. 80-3 ¶ 84; Doc. 83-3 ¶ 55; Doc. 115 at 269-72].[13]
Plaintiff has presented evidence from which a reasonable factfinder could conclude that he was a victim of sexual advances by Pefanis based on sexual attraction to which members of the opposite gender were not subjected. See Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir.2001) ("[W]hen a gay or lesbian supervisor treats a same-sex subordinate in a way that is sexually charged, it is reasonable to infer that the harasser acts as he or she does because of the victim's sex."); McCoy v. Macon Water Auth., 966 F.Supp. 1209, 1217 (M.D.Ga. 1997) ("Because of the demand by the harasser for sexual gratification, the victim is singled out because of his or her gender. Thus, there is discrimination based upon the victim's sex in violation of Title VII.") (internal marks and citation omitted); cf. Forsberg v. Pefanis, Civil Action No. 1:07-CV-3116-JOF-RGV, 2009 WL 901015, at *7 (N.D.Ga. Jan. 26, 2009), adopted in part by Forsberg v. Pefanis, Civil Action No. 1:07-CV-3116-JOF, 2009 WL 901012, at *1 (N.D.Ga. Mar. 27, 2009). Here, while Pefanis may have harassed both male and female employees, plaintiffs evidence shows that the conduct directed at him was based on his sex since Pefanis allegedly repeatedly propositioned him for sex and inappropriately touched him on several occasions. Thus, plaintiff has made a showing that the alleged harassment he endured was based on his sex sufficient to survive summary judgment.
(b) Severe or Pervasive
The Eleventh Circuit has noted that the "severe or pervasive" requirement "is the element that tests the mettle of most sexual harassment claims." Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir.2000), abrogated on other grounds as recognized by Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir.2008) (citation omitted). "And, to be actionable under the statute, the Supreme Court has `made it clear that [the] conduct must be extreme.'" Banks v. San-J Int'l, No. Civ.A. 3:00CV184, 2001 WL 34056053, at *3 (E.D.Va. Jan. 18, 2001) (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275). "The determination of whether the alleged conduct is severe and pervasive, such that it altered the terms and conditions of plaintiff's employment" involves a two-pronged inquiry. Burroughs v. Smurfit Stone Container Corp., LP, 506 F.Supp.2d 1002, 1012 (S.D.Ala.2007). The Court must first determine whether the employee "subjectively perceived" the harassing conduct as severe and pervasive. Id. (citation omitted). If so, the Court must then consider whether the employee's perception is objectively reasonable. Id. See also Parker v. Atlanta Newspapers Name Holding Corp., No. 05-15722, ___ Fed. Appx. ___,___, 2006 WL 1594427, at *2 *1327 (11th Cir. June 12, 2006) (unpublished); Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999); Faragher, 524 U.S. at 787, 118 S.Ct. 2275. Thus, relevant inquiry is whether a reasonable person in plaintiffs position would find the harassment severe and pervasive. Johnson, 234 F.3d at 509.
The Eleventh Circuit has identified the following factors that should be considered in this analysis: "(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Mendoza, 195 F.3d at 1246 (citation omitted). Proof is not required on each factor individually as the Court employs a totality of the circumstances approach. Hulsey, 367 F.3d at 1248; see also Dar Dar v. Associated Outdoor Club, Inc., 201 Fed.Appx. 718, 721 (11th Cir.2006) (unpublished); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). "Although [the Eleventh Circuit] examine[s] the statements and conduct complained of collectively to determine whether they were sufficiently pervasive or severe to constitute sexual harassment, the statements and conduct must be of a sexual or gender-related nature... before they are considered in determining whether the severe or pervasive requirement is met." Gupta, 212 F.3d at 583 (citations omitted).
In analyzing the "sufficiently severe or pervasive" element of a sexual harassment case, "courts routinely remind plaintiffs that `Title VII is not a federal civility code.'" Breda v. Wolf Camera, Inc., 148 F.Supp.2d 1371, 1375 (S.D.Ga.2001) (quoting Mendoza, 195 F.3d at 1245); see also Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.1995) ("[Title VII] is not designed to purge the workplace of vulgarity."); EEOC v. R & R Ventures, 244 F.3d 334, 339 (4th Cir.2001) ("Boorish behavior may exist apart from any propensity to discriminate."). "This requirement is regarded `as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace such as male-on-male horseplay or intersexual flirtationfor discriminatory conditions of employment.'" Breda, 148 F.Supp.2d at 1375 (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998) (internal quotations omitted). "`[S]imple teasing,' offhand comments, and isolated incidents (unless extremely serious)" will not amount to a hostile work environment. Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted).
With these standards in mind, the Court turns to plaintiff's allegations. The Court accepts as true that plaintiff subjectively perceived the harassment to be severe and pervasive. Moreover, the Court finds that plaintiff's evidence also supports his claim that the alleged harassment was so objectively offensive that a reasonable person would have found it severe or pervasive. Plaintiffs claim is supported by Pefanis' alleged frequent sexually offensive conduct, including the following specific allegations pertaining to plaintiff:
Pefanis' comments that plaintiff owed him sex in return for hiring him despite his criminal background. [Doc. 115 at 321, 324-27].
Pefanis' comments to plaintiff on several occasions of "are we going to have sex or not" and "Let's do it," as well as comments that "we should have sex" and "I will make sure you enjoy it." [Id. at 293, 303-10, 324-25].
Pefanis' comment to plaintiff that he had sex with plaintiff's supervisor and that his supervisor had a small penis that he wished was bigger. [Id. at 242-43, 245-46].
*1328 Pefanis repeatedly asking plaintiff if he had a big penis. [Doc. 83-3 ¶ 63; Doc. 83-4 at 6].
Pefanis' rubbing against plaintiffs body and commenting to plaintiff and plaintiffs supervisor that he wanted to have sex with both of them together. [Doc. 115 at 262-65].
Pefanis' request at a closed-door team meeting as to whether "anyone [had] a penis [he could] put in [his] mouth." [Id. at 251-54].
Pefanis' comment to plaintiff during a luncheon asking plaintiff if he even liked sex and talking about sex toys. [Id. at 332; Doc. 68 at 74-75].
Pefanis' repeated touching of plaintiff by placing his hands on plaintiffs thigh and rubbing his hands back and forth on plaintiffs thigh and at least one incident of rubbing plaintiffs chest in the presence of other employees during a team meeting. [Doc. 115 at 239-42, 309-10].
Pefanis' smacking plaintiff on the buttocks and stating, "Nice ass. Let's try it." [Doc. 83-3 ¶ 61; Doc. 83-4 at 6].
Pefanis' grabbing plaintiff from behind and grinding his pelvic area against plaintiff's buttocks to simulate anal sex. [Doc. 115 at 269-72].
"Conduct that occurs every day weighs the frequency factor in the employee's favor." Thornton v. Flavor House Products, Inc., No. 1:07-CV-712-WKW [WO], 2008 WL 5328492, at *9 (M.D.Ala. Dec. 19, 2008). Here, plaintiffs allegations regarding Pefanis' daily conduct in the office and the specific actions directed at plaintiff clearly meet the frequency factor. Johnson, 234 F.3d at 509; Deel v. Metromedia Rest. Servs. Mgmt. Co., L.P., No. 3:05CV120/MCR, 2006 WL 897606, at *1, 11 (N.D.Fla. Apr. 3, 2006). As for severity, considering all of the circumstances taken together, including multiple sexual advances coupled with offensive physical touches, plaintiff's allegations are sufficient to establish a prima facie case and survive summary judgment. Dar Dar, 201 Fed. Appx. at 721-22; Parker, ___ Fed.Appx. at ___, 2006 WL 1594427, at *3; Olson v. Lowe's Home Centers Inc., 130 Fed.Appx. 380, 388 (11th Cir.2005) (unpublished); Hulsey, 367 F.3d at 1247-49; Dees v. Johnson Controls World Serv., Inc., 168 F.3d 417, 418, 422 n. 12 (11th Cir.1999); Johnson, 234 F.3d at 509; Sullivan v. Lake Region Yacht & Country Club, Inc., 996 F.Supp. 1463, 1466-67 (M.D.Fla.1998).
Additionally, plaintiff has sufficiently established the third factor by showing that the conduct was both physically threatening and humiliating. Indeed, on at least two occasions, Pefanis grabbed plaintiff, rubbed his body against his, and on one of those occasions, simulated anal sex. [Doc. 115 at 262-65, 269-72]. Additionally, plaintiff has presented evidence that Pefanis' actions, which were often witnessed my members of defendants' management team or other employees, humiliated him. [Doc. 115 at 225-31, 234, 256, 264, 269-73, 293, 309-10, 332]. Under these facts, a reasonable employee in plaintiffs position would perceive Pefanis' conduct to be physically threatening and humiliating. See Olson, 130 Fed.Appx. at 388; Hulsey, 367 F.3d at 1248; Johnson, 234 F.3d at 509; Jeffers v. Russell County Bd. of Educ., No. 3:06-cv-0685-WKW, 2008 WL 410621, at *9 (M.D.Ala. Feb. 13, 2008). Finally, plaintiff has shown that Pefanis' actions interfered with his job performance in that plaintiff was unable to concentrate on his job, often had to leave the office after an incident with Pefanis, and was ultimately terminated from his employment.
Defendants rely on Mitchell v. Pope, 189 Fed.Appx. 911, 913 (11th Cir.2006) (unpublished), Mendoza, 195 F.3d at 1247, and Gupta, 212 F.3d at 585, in support of their *1329 argument that the conduct alleged here does not meet the severe or pervasive element of a sexual harassment claim. [Doc. 80-2 at 9-10]. In Mitchell, the plaintiff alleged that the harasser tried to kiss her after a Christmas party and called her a "frigid bitch" when she refused, made comments to plaintiff such as "you must be working out," "you sure do look fine," "your ass sure does look fine," and that she could "just walk into the room and [he gets] an erection," showed up on numerous occasions in her driveway, once drunk, telling her that he loved her, attempted to look down her shirt, rubbed up against her, chased her around the office, once picked her up, asked her in telephone conversations if she was dressed or naked, opened the women's bathroom door and turned the lights off when he knew plaintiff was inside, simulated "humping" another female employee with that employee's consent, made sexual comments and gestures about a female magistrate judge, referred to another employee in a derogatory manner, and asked plaintiff to go to a hotel hot tub with him when they were at a conference and called her a "frigid bitch" when she refused. 189 Fed.Appx. at 913.
In Mendoza, the plaintiff alleged that her supervisor constantly stared at her and followed her around, would "look [her] up and down ... in a very obvious fashion," stared at her groin area and made a sniffing motion on two occasions, rubbed his right hip against hers while touching her shoulder and smiling on one occasion, and commenting that he's "getting fired up, too" in response to plaintiff's statement that she "came in here to work." 195 F.3d at 1242-43. Additionally, Gupta involved allegations of conduct over a six or seven month period that included flirtatious comments such as "[you are] looking very beautiful"; frequent late-night calls to plaintiff's house asking personal questions; unbuckling his pants and tucking in his shirt in front of plaintiff; and one incident where the harasser placed his hand on the plaintiff's inner thigh. 212 F.3d at 584-86.
In each of these cases, the Eleventh Circuit found that the conduct alleged fell short of the level of either severe or pervasive conduct, finding that much of the conduct was either not overtly sexual, involved mostly "offensive utterances," or that the more severe allegations were infrequent. Mitchell, 189 Fed.Appx. at 913; Mendoza, 195 F.3d at 1247-49; Gupta, 212 F.3d at 584-85. Indeed, there were only minor allegations of physical contact in these cases. In the present case, however, the sexual comments and physical touching alleged were far more frequent, severe, and threatening than the allegations in Mitchell, Mendoza, and Gupta.
The harassment alleged in this case is more akin to that alleged in Johnson and Olson than in the cases defendants rely on. In Johnson, the plaintiff alleged 15 incidents of unwelcome and harassing conduct that occurred over a four-month period, including sexually explicit comments and gestures, "giving [plaintiff] unwanted massages, standing so close to [her] that his body parts touched her from behind, and pulling his pants tight to reveal the imprint of his private parts." 234 F.3d at 506, 509. Olson involved allegations that the harasser, over a two and half month period, subjected the plaintiff to offensive and vulgar sexual comments several times a week, and touched her at least three times by attempting to kiss her on a single occasion and rubbing against her on two occasions. 130 Fed.Appx. at 388.
This case is also more analogous to Dees and Splunge v. Shoney's, Inc., 97 F.3d 488 (11th Cir.1996), two cases defendants attempt to distinguish. [Doc. 80-2 at 8-9]. Dees involved allegations that defendants harassed plaintiff on a daily basis over a three-year period by making sexually explicit jokes, commenting on plaintiff's body, picking up plaintiff and squeezing *1330 her, multiple propositions for sex, repeated incidents of grabbing and slapping plaintiffs buttocks and leg, and one incident where one defendant ground his groin into plaintiffs buttocks while stating "look at that sexy mama, I could just eat you in that skirt." 168 F.3d at 418, 422 n. 12. Similarly, Splunge involved allegations that four restaurant managers "grabbed [p]laintiffs, commented extensively on their physical attributes, showed them pornographic photos and videotapes, offered them money for sex, favored other employees who had affairs with them, [and] speculated as to the plaintiffs' sexual prowess." 97 F.3d at 490.
As in these cases, the present case involves frequent instances of verbal sexual harassment coupled with unwanted physical touching. In sum, plaintiff has alleged facts sufficient to show that his work environment was objectively hostile and abusive. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir.2008) (finding male supervisor's continual, crass requests for oral sex, regularly rubbing against plaintiff with his private parts, and touching or grabbing her "every time" they worked together was sufficiently severe or pervasive to establish a hostile work environment claim); McKinnis v. Crescent Guardian, Inc., 189 Fed.Appx. 307, 310 (5th Cir.2006) (finding that frequent unwanted touching, including touching on the breasts and thigh over a year-long period, repeated demands for "hugs and kisses," and other inappropriate behavior resulting in plaintiffs resignation, supported a hostile work environment claim); Taylor-Rogers v. Robb & Stucky, Ltd., 82 Fed.Appx. 974, 975 (5th Cir.2003) (finding evidence that co-employee, among other things, rubbed up against plaintiff on a daily basis and had simulated a sex act with her was "sufficient to create a genuine issue of material fact as to the severity and pervasiveness of the harassment"); EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508-09 (6th Cir.2001) (jury could find that supervisor's daily attempt to get close to employee and touching him whenever they were talking, stalking employee two or three times a day after employee was transferred, grabbing employee's private parts constitutes severe, physically threatening, and humiliating discriminatory conduct); Williams v. Kansas City, 223 F.3d 749, 753 (8th Cir.2000) (finding conduct consisting of a supervisor making frequent calls to the plaintiff, inviting her to train him on the weekend, staring at her body, and making sexually charged comments about penis size sufficiently severe or pervasive); Hall v. Gus Const. Co., 842 F.2d 1010, 1012-14 (8th Cir.1988) (finding conduct involving crude names and other verbal abuse, requests to engage in sexual acts, offensive and unwelcome physical touching of thighs and breasts to be sufficiently severe or pervasive to support hostile work environment claim).[14] Accordingly, *1331 the undersigned RECOMMENDS that defendants' summary judgment motion be DENIED as to plaintiffs Title VII sexual harassment hostile work environment claim.
ii. Tangible Employment Action Sexual Harassment
Although defendants have made no specific argument with regard to plaintiffs tangible employment action sexual harassment claim, the Court will evaluate whether plaintiff has established a prima facie case since defendants have moved for summary judgment on plaintiffs sexual harassment claims. To establish a prima facie case of tangible employment action sexual harassment, plaintiff must show that (1) he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) he suffered a tangible employment action; and (5) there is a "causal link between the tangible employment action and the sexual harassment." Orquiola v. Nat'l City Mortgage Co., 510 F.Supp.2d 1134, 1151 (N.D.Ga.2007), adopted at 510 F.Supp.2d at 1141 (citing Cotton, 434 F.3d at 1231). See also Lees v. Dynamic Educ. Sys., Inc., No. 3:06-cv-1106-J-33TEM, 2008 WL 821997, at *9 (M.D.Fla. Mar. 26, 2008) (quoting Virgo v. Riviera Beach Assocs., 30 F.3d 1350, 1361 (11th Cir.1994)).
As previously discussed, plaintiff has presented sufficient evidence to establish the first and third elements of his prima facie case. The fourth element is also satisfied as plaintiff maintains that he suffered a tangible employment action because he was terminated from his employment after he refused to give in to Pefanis' sexual demands. [Doc. 1 ¶ 32]. Plaintiff has likewise satisfied the fifth element as there is a causal connection between the alleged harassment and his termination since it occurred within days of the last sexual proposition. Indeed, "`temporal proximity between the harassment and a tangible employment action can give rise to a genuine issue of fact as to causation....'" Orquiola, 510 F.Supp.2d at 1154 (quoting Cotton, 434 F.3d at 1232).
As for the second element, "[i]n order to constitute harassment ... [the] conduct must be `unwelcome' in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." Morgan v. Fellini's Pizza, Inc., 64 F.Supp.2d 1304, 1309 (N.D.Ga.1999). "In determining whether conduct was unwelcome, the nature of the sexual advances and the context in which they occurred are to be viewed in light of the totality of the circumstances at issue." Id. Plaintiff alleges *1332 that he was humiliated, embarrassed, and offended by Pefanis' actions, and that he told Pefanis to stop, but Pefanis ignored his requests. [Doc. 115 at 225-31, 242-43, 264, 272-73; Doc. 83-4 at 7].
The Court "at the summary judgment stage is not entitled to assess the credibility of the varying accounts of the events that took place between [p]laintiff and [Pefanis]." Morgan, 64 F.Supp.2d at 1310. Therefore, plaintiff's evidence is sufficient to establish a prima facie case that he experienced unwelcome incidents of sexual harassment and to survive defendant's motion for summary judgment. Id. at 1309-10 (evidence offered by plaintiff that she was disturbed and offended by harassers' conduct and asked them to desist sufficient to create a genuine issue of material fact as to whether the conduct was unwelcome).[15] Accordingly, the undersigned RECOMMENDS that summary judgment be DENIED as to plaintiff's tangible employment action sexual harassment claim.
b. Retaliation
Defendants' argument for summary judgment on plaintiff's retaliation claim consists only of a single sentence asserting that the claim "fails because [plaintiff] cannot present any evidence beyond his own self serving testimony, that the reasons [defendants] have advanced for the termination of [plaintiff's] employment are anything other than legitimate, non-discriminatory reasons such that [plaintiff] cannot meet the required pretext showing to avoid dismissal of this claim." [Doc. 80-2 at 21]. "Such an unadorned, and seemingly half-hearted, request for summary judgment hardly warrants consideration." Donnelly v. Chicago Park Dist., 417 F.Supp.2d 992, 1000 (N.D.Ill.2006) (citing Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir.2005) ("court need not scour record to locate support for party's argument; perfunctory or undeveloped arguments are waived")). See also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (There "is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment."). "This is especially the case here, where it is the [defendants] that bear[] the burden of demonstrating [they are] entitled to summary judgment." Donnelly, 417 F.Supp.2d at 1000. Not-withstanding defendants' perfunctory argument, the Court will address the merits of plaintiff's Title VII retaliation claim and whether he has shown pretext.[16]
Defendants have failed to articulate in their motion a legitimate, non-retaliatory reason for the alleged adverse action, i.e., plaintiff's termination. However, based on the defendants' statement of undisputed facts, the Court infers that defendants contend that plaintiff was terminated because he failed to meet his sales quota after having been counseled on several occasions and after having been given a performance improvement plan. [Doc. 80-3 ¶¶ 10-11, 14-15; Doc. 81-4 ¶¶ 10-11; Doc. 81-5 ¶¶ 13-15]. Poor job performance is a legitimate, non-retaliatory reason on its face for terminating an employee. See *1333 Cooper v. S. Co., 390 F.3d 695, 740 (11th Cir.2004), overruled in part on other grounds by, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).
If the employer articulates a legitimate, non-retaliatory reason for the termination, the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct remains on the plaintiff. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). See also Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332 (11th Cir.1998). "In order to directly attack [a defendants'] reasons, [a plaintiff] must demonstrate `such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find [all of those reasons] unworthy of credence.'" Standard, 161 F.3d at 1333 (third alteration in original) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997)).
Defendants presumably contend that Pefanis' motive for firing plaintiff was his failure to meet his sales quota during the 90-day period. Specifically, defendants assert in their statement of undisputed facts that plaintiffs monthly target was $750,000 for the first month of employment, between $1 million and $2 million for his second month, and between $2.5 million and $3 million for his third month. [Doc. 81-15 ¶ 37; Doc. 115, Ex. 12]. According to defendants, plaintiff only reached $245,000 his first month, $401,800 his second month, and $1,447,100 his third month. [Doc. 81-15 ¶¶ 38-41; Doc. 115, Ex. 12]. Defendants assert that during plaintiff's employment, they counseled him about his job performance, placed him on a performance improvement plan, and even warned him that if he did not improve his job performance, he could be terminated. [Id. ¶¶ 48-49; Doc. 81-4 ¶ 10; Doc. 81-5 ¶¶ 12-13]. Defendants' contentions must be evaluated against the entire record viewed in the light most favorable to plaintiff.
According to plaintiff, his minimum sales quota was to reach $1 million by the end of the 90-day period, which he contends he did as evidenced by the fact that he was paid a commission based on this quota. [Doc. 115 at 296]. Plaintiff points to his supervisor's testimony that he was guaranteed a base salary of $2,500.00, and after the 90-day period, the base salary would be eliminated and plaintiff would "earn commissions as follows: 25 basis points on the first million dollars of funded volume per month ... and 10 basis points on the funded dollar amount over the first $1,000,000 of monthly volume." [Doc. 81-15 ¶¶ 7, 34]. Plaintiff also contends that he never received any counseling about performance problems and was never given a performance improvement plan at any time during his employment with AME. [Doc. 115 at 295-96, 336-37]. Indeed, plaintiff points out that defendants have failed to produce any documentation evidencing such counseling or a performance improvement plan. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (fact that plaintiff "never received a negative written performance evaluation or formal warning, nor is there any writing whatsoever criticizing his job performance," indicates that poor job performance as the reason for termination was an afterthought).
Additionally, plaintiff contends that defendants' reason constitutes pretext because the evidence shows that the day after he rejected Pefanis' sexual proposition, plaintiffs supervisor told him that Pefanis wanted him gone but that he was *1334 doing a good job, that his numbers looked good, and that Pefanis had no reason to let him go. [Doc. 115 at 292-96]. See also McArdle v. Dell Products, L.P., 293 Fed. Appx. 331, 338 (5th Cir.2008) (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir.1999) ("`[T]he combination of suspicious timing with other significant evidence of pretext, can be sufficient to survive summary judgment.'")). Moreover, plaintiff points out that a few days later when Abbott advised him that defendants were terminating his employment, Abbott acknowledged that plaintiff had reached his target goals while at AME. [Id. at 337].
Based on the disputed evidence in this case, the Court finds that there is a genuine issue of material fact as to what plaintiff's sales quota was during his 90-day period, whether he in fact met that quota, and whether he was ever counseled regarding any performance problems while employed with defendants. Furthermore, plaintiff has offered sufficient evidence from which a jury could infer that his alleged failure to meet his minimum sales quota during the 90-day period he was employed was a pretext for his discharge. See Miller v. Patterson Motors, Inc., Civil Action No. 3:2007-33, 2009 WL 789897, at *23, 26 (W.D.Pa. Mar. 24, 2009) ("[T]he fact that [d]efendant did not inform [p]laintiff at the time she was discharged that her failure to meet a sales quota was the reason she was being terminated could give rise to an inference that the reason for her termination was discrimination [and/or retaliation, insofar as the evidence shows sufficient weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's preferred legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.]") (internal marks, citations, and emphasis omitted). Accordingly, it is RECOMENDED that defendants' summary judgment motion as to plaintiff's retaliation claim be DENIED.
3. State Law Claims
a. Negligent Hiring and Retention
In Count Two of his complaint, plaintiff brings a negligent hiring and retention claim against AME and Georgia Mutual. [Doc. 1 ¶¶ 44-46]. Under Georgia law, an employer is "bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency." O.C.G.A. § 34-7-20. Liability for negligent retention requires evidence that the employer knew or reasonably should have known of the employee's propensity to engage in the type of conduct that caused injury to the plaintiff. Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir.2001) (applying Georgia law); Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 596 S.E.2d 604, 606 (2004). Thus, to prevail on this claim, plaintiff must produce evidence that AME and Georgia Mutual knew or reasonably should have known that Pefanis was engaging in sexual harassment. Herron v. Morton, 155 Fed.Appx. 423, 426 (11th Cir. 2005) (unpublished) (applying Georgia law); Wynn v. Paragon Sys., Inc., 301 F.Supp.2d 1343, 1355 (S.D.Ga.2004); Mangrum v. Republic Indus., Inc., 260 F.Supp.2d 1229, 1255 (N.D.Ga.2003); Fowler v. Sunrise Carpet Indus., Inc., 911 F.Supp. 1560, 1585 (N.D.Ga.1996) (stating that "if an ordinarily careful employer, acting upon information furnished to it, reasonably could have discovered that its supervisor was sexually harassing its employees, the employer could be found to have negligently retained the supervisor"). See also H.J. Russell & Co. v. Jones, 250 Ga.App. 28, 550 S.E.2d 450, 453 (2001).
Defendants assert that AME and Georgia Mutual lacked knowledge of the conduct alleged in this case. [Doc. 80-2 at *1335 13-15]. Specifically, defendants contend that AME and Georgia Mutual's alleged knowledge that Pefanis sexually harassed three female employees did not put them on notice that Pefanis would sexually harass male employees. [Id.]. Defendants' argument, however, overlooks plaintiffs evidence that Pefanis also allegedly sexually harassed several male employees prior to plaintiffs employment with defendants. [Forsberg Doc. 73-4 ¶ 6; Forsberg Doc. 73-6 ¶¶ 8, 11, 13-17; Forsberg Doc. 73-7 ¶¶ 3-5]. Additionally, plaintiff alleges that many of Pefanis' actions directed toward him were witnessed by members of defendants' management team or that management had knowledge of the actions based on plaintiff's complaints. [Doc. 115 at 234, 251-54, 256-59, 262-68, 272-73, 332]. Accordingly, the undersigned hereby REOMMENDS that defendants' summary judgment motion as to plaintiffs state law claim for negligent hiring and retention be DENIED.
b. Intentional Infliction of Emotional Distress
In Count Four of his complaint, plaintiff brings a claim of intentional infliction of emotional distress against defendants, alleging that the sexually offensive conduct to which he was subjected was "designed to inflict severe emotional distress upon [p]laintiff and did inflict severe emotional distress upon [p]laintiff." [Doc. 1 ¶¶ 53-54]. For an employee to prevail on a claim of intentional infliction of emotional distress under Georgia law, he must show that (1) the employer's conduct was extreme and outrageous; (2) the employer acted recklessly or intentionally; (3) the conduct of the employer caused emotional distress; and (4) the emotional distress was severe. Trimble v. Circuit City Stores, Inc., 220 Ga.App. 498, 469 S.E.2d 776, 778 (1996); Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga.App. 227, 335 S.E.2d 445, 447-48 (1985).
Defendants seek summary judgment because, among other things, plaintiff alleges no specific emotional distress as a result of the harassment alleged in this case. Indeed, plaintiff points to no evidence demonstrating that he suffered severe emotional distress as a result of defendants' actions and fails to respond to defendants' argument regarding this element with the exception of noting it in a brief footnote. [Doc. 83 at 18 n. 10]. Even assuming that plaintiff satisfies the first three elements of his claim, he simply has not shown that any emotional distress he suffered was severe. See Soloski v. Adams, 600 F.Supp.2d 1276, 1371-72 (N.D.Ga.2009), adopted at 600 F.Supp.2d at 1322; Pierri v. Cingular Wireless, LLC, 397 F.Supp.2d 1364, 1382 (N.D.Ga.2005); Quarles v. McDuffie County, 949 F.Supp. 846, 855-56 (S.D.Ga.1996) (granting summary judgment where plaintiff produced no evidence beyond her own assertions to support her claim that she has suffered severe emotional distress). Accordingly, it is RECOMMENDED that defendants' summary judgment motion be GRANTED as to plaintiffs intentional infliction of emotional distress claim.
c. State Law Claim for Violation of O.C.G.A. § 34-2-10
Finally, plaintiff asserts a claim for violation of O.C.G.A. § 34-2-10(a), which provides:
Every employer shall furnish employment which shall be reasonably safe for the employees therein, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees. *1336 Defendants contend that this claim should be dismissed because O.C.G.A. § 34-2-10 does not apply to sexual harassment claims, but only to physical conditions of the workplace. [Doc. 80-2 at 16-21]. In the Forsberg case, the Honorable J. Owen Forrester, Senior United States District Judge, ruled that O.C.G.A. § 34-2-10 "does not apply to sexual harassment in the workplace." Forsberg, 2009 WL 901012, at *1-2. Accordingly, it is REOMMENDED that defendants' summary judgment motion as to this claim be GRANTED.
B. Plaintiff's Motion for Contempt and Sanctions
Plaintiff moves for civil and criminal sanctions pursuant to Federal Rule of Civil Procedure 45(e) and 18 U.S.C. § 401, respectively, against non-parties Eckland, ARELG, and Jeffries, and attorney Ates, [Doc. 94], based on their failure to comply with this Court's October 30, 2008, Order, [Doc. 87], to produce any and all documents responsive to the August 11, 2008, Rule 45 subpoenas served upon Eckland, ARELG, and Jeffries, [Docs. 41-3, 41-4, & 43-3]. Ates, Eckland, and ARELG oppose plaintiffs motion. [Doc. 97]. Jeffries has failed to respond. For the following reasons, the undersigned hereby RECOMENDS that plaintiff's motion, [Doc. 94], be GRANTED in part and DENIED in part.
1. Background
On July 18, 2008, plaintiff served identical Rule 45 subpoenas upon Eckland and ARELG. [Docs. 41-3 & 41-4]. Eckland is Pefanis' business associate, roommate, and partner, and the sole owner of AR-ELG. [Doc. 36 at 1; Doc. 41-2 at 1]. Plaintiff specifically sought documents he contends are relevant to show: (1) defendants fraudulently transferred certain income and assets immediately after the filing of this and other lawsuits [Docs. 41-3 & 41-4],[17] (2) defendants paid witnesses for their testimony,[18] (3) Eckland is a coemployee or alter-ego of defendants and thus liable in this case, and (4) facts and circumstances surrounding Pefanis' sexual harassment in the workplace. [Doc. 44 at 3-9, 12; Doc. 41-2 at 3]. The subpoenas requested the production of documents related to twelve categories:
1. All financial records (including cancelled checks, check stubs, check registers, bank statements and other documents) that reflect any or all of the following:
a. Payments to (or intended for the benefit of) Jock Barnes at any time since January 1, 2006;
b. Payments to (or intended for the benefit of) Farrah Bowers at any time since January 1, 2006;
c. Payments to any friend or family member of Farrah Bowers at any time since January 1, 2006;
d. Payments made to any other individual who has been an employee of [AME] and/or [Georgia Mutual] at any time since January 1, 2006; and/or
e. Payments made at the request of [Pefanis] or any officer, director or employee of [AME] and/or [Georgia Mutual].
*1337 2. All financial records (including cancelled checks, check stubs, check registers, bank statements and other documents) that reflect any disbursement or present whereabouts of the proceeds of the mortgage, in the approximate amount of $150,000, taken out on the property located at 2362 River Ridge Road, Martin, GA.
3. All financial records (including cancelled checks, check stubs, check registers, bank statements and other documents) that reflect any disbursement or present whereabouts of the proceeds of any mortgage taken out by [Eckland] on any property transferred to [Eckland] by [Pefanis] at any time since June 1, 2007. This includes, but is not limited to, the following properties.
a. 6835 Matt Hwy, Cumming, GA
b. 101 McLeoad Farm Road, Dawsonville, GA
c. 28 McLeod Farm Road, Cumming, GA
d. 2290 Winthrope Way Drive, Alpharetta, GA
e. 53 26th Street, NW, Atlanta, GA
f. 1740 Corsica Drive, Wellington, FL
g. 2362 River Ridge Road, Martin, GA
4. All financial records (including cancelled checks, check stubs, check registers, bank statements and other documents) that reflect the identity of any bank or other financial account maintained by [Pefanis].
5. All documents reflecting the identity and/or location of any real property owned by [Pefanis, AME and/or Georgia Mutual] at any time since January 1, 2007.
6. All documents reflecting the employment of Jimmy Partain and/or Jimmie Partain, including any documents reflecting the reasons for the departure of Mr. Partain.
7. All documents reflecting any sexual assault, or alleged sexual assault, on Mr. Partain.
8. All documents reflecting any report (including any complaint) by any employee of [ARELG] that [Pefanis] engaged in any inappropriate racial, sexual or other conduct or that he engaged in any unprofessional conduct.
9. Documents identifying the gross revenue paid to [ARELG] by [AME] and/or [Georgia Mutual] since January 1, 2007.
10. Documents identifying the gross revenue received by [ARELG] as a result of providing legal services with respect to mortgages financed by [AME] and/or [Georgia Mutual] since January 1, 2007.
11. Documents reflecting reports made by [ARELG] to [AME] and/or [Georgia Mutual] regarding legal services performed for third-parties.
12. Documents reflecting or relating to payments by [AME] and/or [Georgia Mutual] to individuals or entities because such individuals or entities utilized [ARELG] (or referred others to utilize [ARELG]).
[Docs. 41-3 & 41-4].
On the same day, plaintiff also served a Rule 45 subpoena on Jeffries,[19] seeking, among other things, financial statements and records for Pefanis, AME, and Georgia Mutual as enumerated in sixteen paragraphs. [Doc. 43-3]. On July 31, 2008, defendants moved to quash plaintiffs sub-poenas *1338 to Eckland and ARELG, [Doc. 37], and on the same day, Eckland and AELG filed an objection to the subpoenas, [Doc. 38]. Jeffries did not move to quash the subpoena, nor did it comply with the subpoena. Thereafter, plaintiff moved to enforce the subpoenas issued to Eckland, ARELG, and Jeffries. [Docs. 41 & 43].
On October 30, 2008, the Court issued an Order addressing, among other things, these subpoenas. [Doc. 87]. In the Court's Order, it specifically found that paragraphs 1 through 8 of the subpoenas to Eckland and ARELG "target information relevant to the issues presented in this case and are properly limited to the purposes identified by plaintiff," and ordered Eckland and ARELG to produce to plaintiff any and all documents responsive to those paragraphs within 15 days from the October 30 Order. [Id. at 14-15]. This Court, however, found that the documents sought in the remaining paragraphs of the subpoenas to Eckland and ARELG were "too attenuated from the claims presented... and [were] not relevant to any issues in this case." [Id. at 15]. With regard to the subpoena issued to Jeffries, the Court found that the documents were "clearly relevant to [plaintiffs'] damages claims and will shed light on defendants' net worth which is discoverable information." [Id. at 16]. Therefore, the Court ordered Jeffries to produce all responsive documents within 15 days from the October 30 Order. [Id. at 17].
On November 14, 2008, Ates, as counsel for Eckland and ARELG, sent an email to plaintiffs counsel with an attached letter in response to the subpoenas issued to Eckland and ARELG and purportedly in compliance with the Court's October 30 Order. [Doc. 94-5]. Plaintiff, however, takes issue with Eckland and ARELG's responses to paragraphs 2 through 5 of the subpoenas. [Doc. 94]. Specifically, with regard to paragraphs 2 and 3 of the sub-poenas issued to Eckland and ARELG, Ates, on Eckland and ARELG's behalf, responded "see attached," and Ates attached a small subset of documents allegedly responsive to those paragraphs. [Docs. 94-5 & 94-6]. With regard to paragraph 4, Ates answered, "Responding with the understanding that the Court's Order denied plaintiffs access to the defendants', Eckland's and ARELG's SunTrust and Wachovia Bank Account RecordsThere are no other responsive documents." [Doc. 94-5 at 2 (all caps omitted)]. Finally, with regard to paragraph 5, Ates responded, "NONE." [Id.]. Jeffries failed to comply with this Court's October 30 Order, or to respond in any way. Therefore, plaintiff filed the present motion for sanctions for civil and criminal contempt against Eckland, ARELG, Ates, and Jeffries. [Doc. 94]. On January 27, 2009, the undersigned held a hearing and afforded the parties and their counsel an opportunity to present arguments and evidence regarding plaintiffs motion. [Doc. 104; see also Doc. 103 at 2]. Therefore, this motion having been briefed and argued is now ripe for ruling.
2. Standard
Federal Rule of Civil Procedure Rule 45 "permits a party to procure discovery from a non-party through the issuance and service of a subpoena." Hernandez v. Tregea, No. 2:07-cv-149-FtM-34SPC, 2008 WL 3157192, at *3 (M.D.Fla. Aug. 4, 2008). "Indeed a properly issued and served subpoena provides a court with jurisdiction over a non-party witness within the court's territorial jurisdiction with respect to the discovery requested in the subpoena." Id. Rule 45(e) "provides that the issuing court `may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena.' A subpoena issued on behalf of the court should be treated as a court order." DeVolk *1339 v. JBC Legal Group, P.C., No. 8:04-CV-1275-T30-EAJ, 2008 WL 1777740, at *1 (M.D.Fla. Apr. 18, 2008) (quoting Fed. R.Civ.P. 45(e)).[20]
"There are two types of contempt, civil and criminal. Civil contempt is a process used by a Court to compel compliance with a subpoena or court order. Criminal contempt is penal in nature and requires compliance with the protections that the Constitution requires in criminal proceedings." Bray & Gillespie Management LLC, 2008 WL 4371345, at *3. "A contempt fine ... is considered civil and remedial if it either coerce[s] the [contemnor] into compliance with the court's order, [or] ... compensate[s] the complainant for losses sustained." Id. (internal marks and citation omitted) (alteration in original).
"Courts have inherent power to enforce compliance with their lawful orders through civil contempt." Old Nat'l Bank v. Goldberg & Assocs., LLC, No. 08-80078-CIV, 2009 WL 813019, at *2 (S.D.Fla. Mar. 23, 2009).[21] "In a contempt action, the moving party must prove by clear and convincing evidence that (1) a valid court order was in effect; (2) the order was clear and unambiguous; and (3) the alleged violator could have complied with the court's order, had he chosen to do so." Taylor v. Teledyne Technologies, Inc., 338 F.Supp.2d 1323, 1345-46 (N.D.Ga. 2004) (citations omitted). See also Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990) (citations omitted). "However, once the moving party makes a prima facie showing that the court order was violated, the burden of production shifts to the alleged contemnor to show a present inability to comply that goes beyond a mere assertion of inability." Howard Johnson Co., 892 F.2d at 1516 (internal marks and citations omitted). "Therefore, the focus of the court's inquiry *1340 in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue." Id. "Conduct that evinces substantial, but not complete, compliance with the court order may be excused if it was made as part of a good faith effort at compliance." Id.
"`The role of criminal contempt is to protect the institutions of our government and enforce their mandates. A federal court may impose criminal sanctions pursuant to 18 U.S.C. § 401 ... to vindicate its authority and safeguard it own processes.'" E.A. Renfroe & Co., Inc. v. Moran, 508 F.Supp.2d 986, 995 (N.D.Ala. 2007) (quoting In re McDonald, 819 F.2d 1020, 1023-24 (11th Cir.1987)) (footnote omitted). "The essential elements of criminal contempt are that the court entered a lawful order of reasonable specificity, it was violated, and the violation was wilful." McDonald, 819 F.2d at 1024. "Whether the order is reasonably specific is a question of fact and must be evaluated in the context in which it is entered and the audience to which it is addressed." Id. (internal marks and citation omitted). "In criminal contempt, willfulness means a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order." Id. (internal marks and citations omitted). "Each of these elements must be proven beyond a reasonable doubt in order to determine guilt and impose punishment." Id.
3. Discussion
In the present case, Eckland and ARELG appeared through their counsel, Ates, and were subject to the Court's October 30, 2008, Order. The evidence before the Court shows that with regard to paragraph 4 of the subpoenas issued to Eckland and ARELG, Ates, on behalf of Eckland and ARELG, failed to respond as ordered by the Court. In his brief and at the hearing, Ates, admitted that the response given was by his own choice and not that of Eckland or ARELG, and argued that because the Court granted defendants' motion to quash subpoenas issued to Wachovia, SunTrust, Colonial, National City, Wells Fargo, and CitiMortgage banks, [Doc. 87 at 9-10, 17-19], that Eckland and ARELG were not required to produce to plaintiff any bank records. [Doc. 97 at 8-10].
Specifically, Eckland and ARELG state in their brief that "producing the bank records associated with this account would be exactly inconsistent with the Court's ruling quashing the subpoenas that were served on the Banks for these same bank records." [Id. at 10]. Ates' argument, however, overlooks the fact that there was no conflict in the Court's October 30 Order as the Court specifically found the subpoenas issued to the banks to be overbroad, but that the subpoenas to Eckland and ARELG were narrowly tailored. [Doc. 87 at 11, 14, 18-19]. Indeed, the Court, in quashing plaintiff's subpoenas to Wachovia and SunTrust banks, made clear that "the Court does not intend to preclude all discovery of the non-parties [and defendants'] finances ... but ... cannot permit such unrestricted access to defendants', Eckland's and ARELG's bank accounts, which goes beyond the limited purposes identified by plaintiff." [Id. at 11 (internal marks and citation omitted)]. In direct contrast, the Court found that the documents sought in the subpoenas issued directly to Eckland and ARELG were properly limited to the purposes identified by plaintiff. [Id. at 14]. There is nothing inconsistent about the Order, and the Court finds that Eckland and ARELG, by and through Ates, failed to comply with the October 30, 2008, Order.
*1341 With regard to paragraphs 2 and 3 of the subpoenas issued to Eckland and AELG, plaintiff asserts that Eckland testified that he "obtained a $150,000 mortgage on the transferred River Ridge property and then spent approximately $125,000 of this amount to pay his personal bills to creditors."[22] [Doc. 94-2 at 10]. Plaintiff further asserts that Eckland maintained that he had records that would list all of these creditors. [Id. at 11]. However, plaintiff contends that Eckland and AELG only produced five documents that show that ARELG had debits of $6,400 that were used to pay credit card bills to unspecified accounts of Pefanis, Eckland, or ARELG, and that all but $700 of these payments were dated after Eckland's July 1, 2008, deposition such that only $700 could relate to the debt payment Eckland claimed he had made with a portion of the $125,000. [Id.]. Finally, plaintiff contends that the remaining documents produced by Eckland and ARELG show that Eckland paid a personal credit card bill in the amount of $21,000 and purchased two horses for $80,000 from ARELG's "Lawyer Trust Account," which shows that only $21,700 of the $125,000 was used to pay credit cards and other debts, and that Eckland lied in his deposition when he stated that he only used $10,000 for expenses relating to horses he already had. [Id. at 11-12 & n. 2].
At the hearing, Ates stated that he relied on discussions with Eckland in responding to paragraphs 2 and 3 of the subpoenas and did not conduct his own independent review. [Doc. 104]. While Ates also cites to Eckland's deposition testimony to refute plaintiffs contentions, a review of Eckland's testimony shows that he testified that he used $125,000 of the $150,000 mortgage to pay off credit cards and other bills. [Doc. 66 (Eckland Dep.) at 69-70, 72-74]. Eckland further stated that he did not remember all of the creditors but could get the list of creditors he paid his debt to as he had those records in his possession. [Id. at 75]. Yet, Eckland has produced only five documents that show that ARELG paid off debts totaling $6,400. [Doc. 94-2 at 11]. Thus, it is apparent that Eckland did not produce all of the documents he testified were in his possession and were sought in paragraphs 2 and 3 of the subpoenas. To the extent Eckland had in his possession or had the ability to obtain responsive documents, he was required to produce those documents to plaintiff. By failing to do so, he failed to comply with the Court's October 30 Order.
Finally, with regard to paragraph 5 of the subpoenas, plaintiff contends that Eckland and ARELG's response of "NONE" for documents reflecting the identity and/or location of any real property owned by Pefanis, AME, or Georgia Mutual since January 1, 2007, is directly contradicted by Eckland and Pefanis' testimony that Eckland had the deeds to at least seven properties that fell within the request. [Doc. 94-2 at 13]. At the hearing, Ates, acknowledging that the argument he made in his brief in opposition was incorrect, conceded that they did not produce any documents in response to paragraph 5 even though responsive documents exist. Indeed, Ates agreed that Pefanis owned with Eckland the properties listed in paragraph 3 of the subpoena with Eckland until June 2007 such that documents relating to those properties would be responsive to paragraph *1342 5. Therefore, to the extent that such documents had not already been produced, Ates agreed to produce those documents to plaintiff on the same day of the hearing, January 27, 2009.
Based on the foregoing, plaintiff has sufficiently established a prima facie case that Eckland, ARELG, and Ates failed to comply with the Court's October 30, 2008, Order, by failing to produce responsive documents to paragraphs 2 through 5 of the subpoenas issued to Eckland and AELG. The burden having shifted, Ates, Eckland, and ARELG failed to produce sufficient evidence to explain their noncompliance. Moreover, the evidence shows that the failure to respond to paragraphs 2 and 3 lies directly with Eckland and ARELG whereas the failure to respond to paragraphs 4 and 5 lies directly with Ates. Thus, plaintiff has established a basis to certify this matter for civil sanctions against Eckland, ARELG, and Ates. Moreover, Jeffries' failure to comply with the Court's October 30, 2008, Order directing it to produce responsive documents within fifteen days from that Order, and its failure to offer any explanation for its noncompliance with the Order, also provides a basis to certify the matter for civil contempt sanctions against Jeffries.[23] Accordingly, it is RECOMMENDED that plaintiffs motion for sanctions, [Doc. 94], be GRANTED in part and DENIED in part, and pursuant to 28 U.S.C. 636(e), the undersigned hereby certifies the foregoing facts to the District Judge and respectfully RECOMMENDS that a show cause order be issued requiring Ates, Eckland, AELG, and Jeffries to appear and show cause why they should not be adjudged in contempt. See Cadles of Grassy Meadows II, LLC v. Swift, No. 2:07-mc-10-FtM-99DNF, 2007 WL 4171149, at *1 (M.D.Fla. Sept. 10, 2007).
III. CONCLUSION
For all of the foregoing reasons, the undersigned GRANTS defendants' motion for leave to file summary judgment exhibits out of time, [Doc. 81], and RECOMENDS that defendants' motion for partial summary judgment, [Doc. 72], and plaintiffs motion for civil and criminal contempt and for sanctions, [Doc. 94], be GRANTED in part and DENIED in part. IT IS SO ORDERED and RECOMENDED, this 10th day of July, 2009.
NOTES
[1] Both in the instant matter and the Forsberg litigation, Defendants' counsel has filed numerous motions for extensions of time. Often, the motion seeks an extension of one or two days and just prior to the expiration of that time, another motion is filed seeking a similarly short extension. The court notes this practice does not generally aid in judicial economy, but as Plaintiff has yet to be prejudiced by requests for these extensions, the court will grant them. The court, however, makes no comment as to how it might view these motions going forward. The court GRANTS Defendants' motions for extension of time [118], [119], and [120]; and GRANTS Defendants' motion for leave to file objections out of time [125].
[1] Pefanis, AME, and Georgia Mutual are hereinafter collectively referred to as defendants.
[2] In their motion, defendants state they also seek summary judgment on plaintiff's claim for back pay. [Doc. 80 at 2]. However, defendants have made no argument in their brief in support of summary judgment regarding the back pay claim. [See Doc. 80-2]. Thus, the Court will not address this issue since defendants failed to offer any argument and are therefore deemed to have abandoned it. Cheffer v. Reno, 55 F.3d 1517, 1519 n. 1 (11th Cir.1995) (finding issue abandoned even though party's brief listed the issue in the statement of issues because party provided no argument on the merits of the claim in their brief). See also Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir.2007) (concluding that a party's "cursory statements, without supporting analysis and case law, fail to constitute the kind of briefing that is necessary" to merit consideration by the court); United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996) (issues which are "adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").
[3] In connection with their summary judgment motion, defendants filed a motion for leave to file summary judgment exhibits one-day out of time, [Doc. 81], which plaintiff opposes, [Doc. 83-2 at 2-5]. Plaintiff, however, also cites to some of defendants' exhibits in support of their statement of material facts that present a genuine issue for trial. [Doc. 83-3 ¶¶ 1, 89, 93]. Because defense counsel mistakenly believed that he had timely filed the exhibits and plaintiff has not been prejudiced by the one-day delay, the Court GRANTS defendants' motion, [Doc. 81].
[4] Defendants have also filed a motion to compel, [Doc. 109], seeking disclosure of witnesses who allegedly provided information that defendants paid substantial sums of money to Farah Bowers in exchange for favorable testimony. Defendants filed this same motion in the Forsberg case, [Civil Action No.: 1:07-cv-3116, Doc. 120], and motions in that case have been set for a hearing before the District Court, [id. at Doc. 134]. Accordingly, the pending motion to compel, [Doc. 109], will not be addressed herein.
[5] The facts in this case are strongly disputed. "However, for purposes of this motion, when facts are in dispute the court must assume that any admissible evidence proffered by the plaintiff is true, and must also draw all reasonable inferences from the evidence in the plaintiff's favor." Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1216 (D.Or.2002). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). With this in mind, in connection with their motion and as required by Local Rule 56.1(B), defendants have submitted a statement of facts showing no genuine issues to be tried, [Doc. 80-3], to which plaintiff has responded, [Doc. 83-2]. Plaintiff also submitted his own statement of material facts which he contends present a genuine issue for trial, [Doc. 83-3], to which defendants have responded, [Doc. 90-2]. With regard to some of defendants' statements of facts, [Doc. 80-3], they either were not supported by a citation to evidence, including page or paragraph number, or were not supported by the citation provided in violation of Local Rule 56.1B(1). Nevertheless, the Court accepts as undisputed those facts which the parties admit. [See Doc. 83-2, admitting ¶¶ 2-5, 13 (defendants actually listed two paragraphs with the number 13 and plaintiff admits both paragraphs), 41-42, 52, 56-59, 65-66, 75-79, 86-89, 91, 93, 95, and parts of ¶¶ 1, 6-7, 9, 25, 30, 43-44, 47-48, 54, 60-62, 67, 71-74, 80-85, 90, 92, and 94 of defendants' statement, Doc. 80-3; Doc. 90-2, admitting ¶¶ 1, 3-6, 8, 10, 12-28, 31-49, 51-94, 96, and parts of ¶¶ 2, 7, 29-30, and 95 of plaintiff's statement, Doc. 83-3]. The Court, however, has omitted certain facts which are not material to the issues presented in the pending motion, were stated as an issue or legal conclusion, or were not supported by citations to evidence. See Local R. 56.1B(1), (2)(iii), N.D. Ga. Moreover, defendants attempt to rely on the affidavit of Jennifer Walter in support of their statement of facts numbers 16 through 19 and the affidavit of Raquel McClendon for their statement of facts numbers 20 through 24, [Doc. 80-3 ¶¶ 16-19, 20-24], to which plaintiff objects, [Doc. 83-2 ¶¶ 16-19, 20-24]. Because defendants failed to disclose Jennifer Walter or Raquel McClendon as persons likely to have discoverable information pursuant to Federal Rule of Civil Procedure 26, [see Doc. 7], the Court SUSTAINS plaintiff's objections and declines to consider these affidavits in ruling on defendants' partial summary judgment motion. Kramer v. Gwinnett County, Ga., 306 F.Supp.2d 1219, 1224-25 (N.D.Ga.2004) (striking plaintiff's affidavit where witness was not identified in plaintiff's response to defendant's discovery requests or in plaintiff's initial disclosures). See also Dogan-Carr v. Saks Fifth Ave. Texas, LP, Civil Action No. 05-1236, 2007 WL 646375, at *19 (S.D.Tex. Feb. 26, 2007) (striking plaintiff's affidavit because plaintiff "failed to disclose [affiant] as a person with knowledge of relevant facts and now attempts to rely on her affidavit testimony, without having afforded [defendant] the opportunity to depose [affiant] before the end of the discovery period"). Finally, plaintiff relies on certain affidavits submitted as exhibits in opposition to a summary judgment motion filed in another case involving the same defendants. See Forsberg v. Pefanis, Civil Action No. 1:07-cv-3116-JOF-RGV. Any documents referenced in this case that were filed in the Forsberg case will be referred to as "[Forsberg, Doc.____]."
[6] Defendants contend that plaintiff was transferred from outside sales to the inside sales department managed by Brian Abbott ("Abbott") because they determined that plaintiff would benefit from more "hands-on" training and mentoring after having been counseled by Anderson to improve his sales numbers. [Doc. 80-3 ¶¶ 8-9, 13; Doc. 81-5 ¶¶ 2, 5; Doc. 81-4 ¶ 7]. Specifically, defendants contend that several areas of concern with regard to plaintiff began to develop, including that he would disappear for hours at a time without notifying management of any prior appointments, he failed to grasp some of the basic knowledge required to perform his position, and was unable to meet production quotas set forth at the beginning of his employment. [Doc. 80-3 ¶¶ 8, 12; Doc. 81-5 ¶¶ 6-7, 9-12; Doc. 81-4 ¶ 12]. Plaintiff, however, disputes these contentions, arguing that he was actually transferred to an inside sales position partly because AME hired another employee to take over the outside account executives. [Doc. 83-2 ¶ 9; Doc. 115 at 259-60, 342]. Plaintiff further points out that Anderson remained plaintiff's supervisor at all times during his employment with AME. [Doc. 83-2 ¶ 9; Doc. 115 at 338].
[7] Plaintiff also alleges that Pefanis referred to African-Americans in the office as "niggers," "nappy headed nigger," and made statements such as "Daddy's in the big house, and I need my coloreds around me." [Doc. 83-3 ¶ 95; Forsberg Doc. 73-4 ¶¶ 5, 22; Forsberg Doc. 73-5 ¶ 3; Forsberg Doc. 73-7 ¶ 6; Forsberg Doc. 73-6 ¶¶ 5-6], which may be relevant to the overall hostility at AME. Brantley v. City of Macon, 390 F.Supp.2d 1314, 1324-25 (M.D.Ga.2005) ("Remarks and conduct targeted at others `may contribute to the overall hostility of the working environment.' A plaintiff `may also support a claim of hostile work environment by the use of harassing conduct [he] learned of through hearsay, so long as [he] was aware of the harassing incidents at the relevant time at which [he] alleges [he] experienced the hostile environment.'") (citation omitted); Cardin v. VIA Tropical Fruits, Inc., No. 88-14201-CIV-MARCUS, 1993 WL 945324, at *10 n. 8 (S.D.Fla. July 9, 1993) (citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416-17 (10th Cir.1987) ("holding that trial court may aggregate evidence of racial hostility with evidence of sexual hostility to determine whether there was a pervasive discriminatory atmosphere")).
[8] AME's application for employment requested disclosure of any felony conviction and plaintiff admits that he intentionally omitted his felony conviction on his AME application because he "didn't want to disclose that information" and did not want anything to happen to his job prospect at AME. [Doc. 80-3 ¶ 66; Doc. 83-2 ¶ 62; Doc. 115 at 159-61].
[9] Plaintiff contends that AME's quota for him was to aim at over $1 million in sales, and that he met his sales quota while employed by AME as evidenced by the commission he received. [Doc. 80-3 ¶¶ 88-89; Doc. 83-3 ¶¶ 88-90; Doc. 81-15 ¶¶ 7, 34; Doc. 115 at 295-96]. Defendants dispute that plaintiff met his quota while employed and actually contends that his quota was much higher than the $1 million mark asserted by plaintiff. [Doc. 83-3 ¶¶ 92-93; Doc. 115 at 295-300 & Ex. 12; Doc. 81-15 ¶¶ 37-42].
[10] Defendants contend that plaintiff was counseled on numerous occasions that he needed to improve his sales numbers, and that he never reached his minimum quota. [Doc. 80-3 ¶ 10; Doc. 81-4 ¶ 11]. In fact, they contend that they gave plaintiff a verbal warning that if his production did not improve, he would be terminated. [Doc. 80-3 ¶ 11; Doc. 81-4 ¶ 10]. Defendants further contend that they gave plaintiff a performance improvement plan to help improve his sales, but that he did not follow the plan and that he was subsequently terminated for failing to meet performance requirements. [Doc. 80-3 ¶¶ 14-15; Doc. 81-5 ¶¶ 13-15]. Plaintiff disputes that he was ever counseled about any performance problems while employed at AME, and points out that defendants have failed to produce any such performance improvement plan because he was never given one. [Doc. 80-3 ¶ 88; Doc. 83-3 ¶ 88; Doc. 83-2 ¶ 14; Doc. 115 at 295-96, 336-37].
[11] "[T]he Supreme Court in [Ellerth], instructed that the term quid pro quo should no longer be used and the courts now use the term tangible employment action to refer to harassment that culminates in a discharge, demotion, or undesirable reassignment." Beasley v. Wal-Mart Stores East, L.P., Civil Action No. 05-0620-KD-B, 2006 WL 3449144, at *9 n. 7 (S.D.Ala. Nov. 29, 2006) (quoting Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir.2004)) (internal marks omitted). Although the Eleventh Circuit in has interpreted Ellerth as "largely wip[ing] out the usefulness of the terms `hostile environment' and `quid pro quo,'" Johnson, 234 F.3d at 508 n. 7, the terms remain in use and retain some utility. See Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1199 (11th Cir.2001).
[12] See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
[13] Plaintiff contends that Pefanis sexually harasses males for his sexual gratification, whereas he harasses females to demean, degrade, and subordinate them because of his general hostility towards women. [Doc. 83-3 ¶¶ 4,7; see also Forsberg Doc. 73-4 ¶ 7]. Defendants assert that plaintiff has offered no evidentiary support for this contention, but, as the Court ruled in Forsberg, the nature of the conduct and comments Pefanis allegedly directed at his female employees as compared to the male employees tends to support plaintiff's contention. [Doc. 83-3 ¶¶ 2, 5-6, 8, 14, 17, 21-22, 25-26, 40, 43-44, 46-48, 52, 55, 60-62, 76; Forsberg Doc. 73-4 ¶¶ 6-7, 20-23; Forsberg Doc. 73-5 ¶¶ 4-7; Forsberg Doc. 73-6 ¶¶ 8-17; Forsberg Doc. 73-7 ¶¶ 3-7; Doc. 115 at 225-33, 239-43, 245-48, 251-54, 262-65, 269-72, 293, 303-10, 324-25, 332]. Pefanis made demeaning and humiliating comments about Forsberg's female anatomy, [Forsberg Doc. 73-4 ¶¶ 7-9, 18-19], whereas he repeatedly propositioned plaintiff for sex, [Doc. 115 at 303-10].
[14] Defendants rely on a number of cases from other districts to show that the conduct alleged here falls short of the severe or pervasive standard. [Doc. 80-2 at 10-13]. Defendants' reliance on these cases, however, is misplaced. The incidents described in those cases were only episodic, included no physical touchings or the physical touchings were not sufficiently severe, or the employer manifested unequivocally that it considered the charge a serious matter and took prompt remedial steps to address it. See Shepherd v. Comptroller of Public Accounts of the State of Texas, 168 F.3d 871, 872 (5th Cir.1999) (plaintiff admitted defendant never propositioned her, asked her out on a date, or suggested that he would like to sleep with her; that she had a friendly relationship with defendant in and out of work; and that the touching only included the rubbing of one of defendant's hands from plaintiff's shoulder to her wrist and then stopped once defendant was transferred to a different agency); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (allegations included vulgar remarks found to be no more offensive than sexual jokes told on major television networks and no touching); Adusumilli v. City of Chicago, 164 F.3d 353, 361-62 (7th Cir.1998) (allegations included isolated instances of coworkers' touching the plaintiff's arm, fingers, and a "relatively mild ... poke" in the buttocks); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998) (allegations included two alleged incidents of hostile treatment in which a supervisor made a comment about the plaintiff's body and touched her breasts with some papers); Black v. Zaring Homes, Inc., 104 F.3d 822, 823 (6th Cir.1997) (allegations consisted of "merely offensive" comments made at bi-weekly meetings over a four-month period); Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 753-54 (4th Cir.1996) (allegations included ambiguous comments not specifically directed at plaintiff and incidents of bumping into plaintiff, giving plaintiff a congratulatory kiss at his wedding, positioning a magnifying glass over plaintiff's crotch, and staring at plaintiff in the bathroom); DeAngelis v. El Paso Municipal Police Officers Ass'n, 51 F.3d 591, 596 (5th Cir.1995) (allegations included four printed references to plaintiff over a two and a half year period in a company newsletter); Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993) (allegations included the supervisor asking plaintiff for a date, calling plaintiff names, putting his hand on plaintiff's shoulder, placing "I love you" signs in plaintiff's work area during one week, and attempting to kiss her in a bar).
[15] As noted earlier, defendants have only challenged whether plaintiff can establish a prima facie case of hostile work environment. To the extent defendants attempt to rebut plaintiff's prima facie case of tangible sexual harassment by arguing that they terminated plaintiff's employment for a legitimate, nondiscriminatory reason, i.e., that plaintiff failed to meet his sales quota during his 90-day period of employment, this argument fails for the reasons stated hereinafter in the discussion of plaintiff's retaliation claim.
[16] Defendants make no argument as to whether plaintiff has established a prima facie case of retaliation. Therefore, for purposes of this motion, the Court presumes that plaintiff has established a prima facie case of retaliation.
[17] Specifically, plaintiff contends that just hours before Pefanis' deposition in this case, Pefanis transferred millions of dollars worth of real property to Eckland for no consideration. [Doc. 44 at 4]. Plaintiff contends that Eckland then began mortgaging certain property in an effort to "rob it of all of its equity value." [Id. at 5].
[18] Plaintiff claims that Pefanis and Eckland provided monetary incentives to at least one witness, Farrah Bowers, in exchange for favorable testimony. [Doc. 44 at 5-9].
[19] Jeffries is defendants' accounting firm that prepared the audited financial statements. [Doc. 43-2 at 3-4].
[20] "While `the Federal Rules do not explicitly provide an avenue to sanction attorneys who fail to comply with discovery orders .... there is no doubt' that a court may exercise its inherent powers to sanction discovery abuses and to discipline attorneys who engage in obstructive behavior." Blackwell v. St. Charles Parish, Civil Action No. 05-2105, 2009 WL 586179, at *3 (E.D.La. Mar. 5, 2009) (quoting Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1410-11 (5th Cir.1993)). "The inherent powers of federal courts are those which `are necessary to the exercise of all others.'" Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (internal marks and citation omitted). "The most prominent of these is the contempt sanction, which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court." Id. (internal marks and citation omitted). Therefore, "deeply rooted in the common law tradition is the power of any court to manage its affairs [which] necessarily includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it." Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d 1440, 1447 (11th Cir.1985) (internal marks and citation omitted). See also Hutto v. Finney, 437 U.S. 678, 689 n. 14, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (courts may sanction party or attorney who shows bad faith); Bray & Gillespie Management LLC v. Lexington Ins. Co., No. 6:07-cv-222-Orl-98KRS, 2008 WL 4371345, at *4 (M.D.Fla. Sept. 22, 2008) ("Courts ... have the inherent power to sanction parties, lawyers, or both for engaging in conduct that abuses the judicial process.").
[21] Pursuant to 28 U.S.C. § 636, where an act constitutes a civil contempt, "the magistrate judge shall certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question ... an order requiring such person to appear before a district judge ... to show cause why that person should not be adjudged in contempt by reason of the facts so certified." 28 U.S.C. § 636(e)(6)(B)(iii). Thereafter, "[t]he district judge shall ... hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge." Id.
[22] As previously stated, paragraph 2 requested documents reflecting any disbursements or present whereabouts of the proceeds of the mortgage, in the approximate amount of $150,000, taken out on a certain piece of real property. [Docs. 41-3 & 41-4]. Paragraph 3 requested the same information with regard to any property Pefanis transferred to Eckland at any time since June 1, 2007. [Id.].
[23] While civil contempt sanctions against Ates, Eckland, ARELG, and Jeffries are recommended for their failure to comply with the Court's October 30, 2008, Order, criminal contempt sanctions are not recommended in this case.
|
117 Cal.App.3d 73 (1981)
172 Cal. Rptr. 457
ROBERT A. NELSON et al., Plaintiffs and Appellants,
v.
JAMES R. OROSCO et al., Defendants and Appellants.
Docket No. 43860.
Court of Appeals of California, First District, Division One.
March 19, 1981.
*75 COUNSEL
Cadoo, Tretheway, McGinn & Morgan and Robert J. Reamer for Plaintiffs and Appellants.
Watson & Hoffe, R. Bruce Hoffe and M. Jeffrey Micklas for Defendants and Appellants.
OPINION
ELKINGTON, Acting P.J.
Plaintiffs Robert A. Nelson and Sandra M. Nelson (hereafter for convenience in the singular, Nelson) appeal from a judgment declaring that they take nothing by way of a deficiency, after a judicial foreclosure sale of real property, from defendants *76 James R. Orosco and Annette M. Orosco (hereafter for the same reason, Orosco). Orosco cross-appeals from an order setting aside the foreclosure sale on Nelson's motion.
(1) In our analysis of the appeals we initially observe that an action to foreclose on the security of a trust deed under Code of Civil Procedure section 726 is a proceeding in equity. (Chance v. Superior Court (1962) 58 Cal.2d 275, 291 [23 Cal. Rptr. 761, 373 P.2d 849]; Cummins v. Bank of America (1941) 17 Cal.2d 846, 849 [112 P.2d 593]; Lawrence v. Oakes (1931) 117 Cal. App. 32, 35-36 [3 P.2d 334].) In such a proceeding the court will exercise "broad powers" in shaping its decree (Cummins v. Bank of America, supra, 17 Cal.2d at p. 849) to "afford complete relief as between the parties" (Lawrence v. Oakes, supra, 117 Cal. App. at pp. 35-36); it will act "in a manner ensuring maximum possible protection to the rights of all concerned" (Chance v. Superior Court, supra, 58 Cal.2d at p. 291).
We observe the following uncontroverted evidence of the record.
Orosco had purchased residential, "Canyon Road," property from Nelson, and as part of the purchase price delivered to Nelson his promissory note for $111,424.09. The promissory note was secured by a second trust deed upon another residence owned by Orosco, the "Happy Valley Road" property. Orosco had "requested [of Nelson] that the property that secured that note be the subject property in this litigation, to wit: [the Happy Valley Road property]" (hereafter the property).
Following the above-noted transaction Orosco entered into a contract to sell the property to one Woodburn who forthwith entered into possession of it. Woodburn had financed the transaction in part by assuming a $100,000 first trust deed indebtedness and lien against the property. The contract of sale made no mention of Nelson's second trust deed.
Orosco thereafter defaulted on the obligation of his promissory note, and Nelson commenced an action for foreclosure of the second trust deed security of the property. Orosco also defaulted in the action, and judgment was entered against him.
The judgment determined the amount of principal and interest, plus attorney fees, then due Nelson to be $67,116.35, and confirmed a lien for that amount under his second trust deed. The property was ordered *77 to be sold by a court commissioner with the net purchase price to be applied toward Orosco's indebtedness, with a deficiency judgment against Orosco, if any, to be rendered "on proper application therefor and as authorized by law."
Following entry of the above-noted judgment, and before its directed foreclosure sale, Woodburn commenced an action against Orosco and Nelson. The theory of the action was that Orosco had falsely "failed to disclose and omitted the fact that the title was subject to a purported lien and encumbrance" of Nelson. Woodburn's action sought specific performance of the sale agreement by Orosco, free and clear of the "purported lien and encumbrance" of Nelson, and damages of $130,000 against Orosco and Nelson. (No contention was, or is, made in the instant action by Orosco that Nelson was involved in any way in the dealings with Woodburn.) And Woodburn had caused a notice of the pendency of his action to be recorded.
Thereafter at the foreclosure sale, there for obvious reasons being no other bidders, Nelson purchased the property for $1,000 over and above the existing first trust deed encumbrance of $100,000.
Following the foreclosure sale and as permitted by the earlier judgment, Nelson made "proper application [for a deficiency judgment] as authorized by law," i.e., Code of Civil Procedure section 726. At that point, although his default had been entered in the action, Orosco was allowed to oppose the deficiency judgment on the ground that section 726 limited "a deficiency judgment to the difference between the total debt and the fair value of the property at the date of sale, ..." (See 3 Witkin, Summary of Cal. Law (8th ed. 1973) Security Transactions in Real Property, § 116, pp. 1584-1585.) Three expert witnesses at the hearing testified, respectively, that the property had a fair market value of $120,000-$140,000, $95,000-$108,000, and $180,000. In reaching their appraisals, none had considered the effect of the Woodburn action, or its lis pendens, or the fact that he was unlikely consensually to give up possession of the property to any buyer at the foreclosure sale. At the hearing Nelson had raised such issues, and had unsuccessfully offered a stipulation that the foreclosure sale be set aside and that another such sale be held.
The trial court nevertheless found the property's fair market value at the time of the foreclosure sale to have been $180,000. Judgment was *78 entered that Nelson recover nothing from Orosco by way of a deficiency. It is from that judgment that Nelson has appealed.
The superior court, in addition to finding the property's fair market value to be $180,000 at the time of the foreclosure sale, made the following findings of fact.
Title to the property on the day of the foreclosure sale was clouded because of the following circumstances: Orosco had previously entered into a contract to sell the property to Woodburn without mention of Nelson's second trust deed thereon. Woodburn, in possession of the property, had filed an action (with an accompanying lis pendens) claiming that Orosco and Nelson had maliciously and fraudulently arranged to further encumber the property to Nelson to the injury of Woodburn, who sought the extinction of the Nelson trust deed, and to prevent the property's sale by the foreclosure action, or otherwise.
As a conclusion of law from these facts the court ruled that under Code of Civil Procedure section 726 no deficiency judgment was legally permissible.
Following entry of that judgment and his notice of appeal therefrom, Nelson moved for an order setting aside the foreclosure sale. Another hearing was held, following which the court (by the same judge), obviously entertaining second thoughts about its earlier order, directed that the foreclosure sale be set aside. Orosco has, as noted, appealed from the order setting aside the foreclosure sale.
(2a) We consider first Nelson's appeal from the judgment denying a deficiency against Orosco after the foreclosure sale.
We become concerned with the legislatively intended meaning of Code of Civil Procedure section 726's phrase (3d par.) "fair value of the property or the interest therein sold as of the date of sale, ..."
Orosco contended, and the trial court presumably believed, that it was the price a willing purchaser would pay to a willing seller in an open market (see Kaiser Co. v. Reid (1947) 30 Cal.2d 610, 623 [184 P.2d 879]) if the title to the property was unclouded and clear.
*79 Nelson, on the other hand, argued that under the circumstances of Woodburn's pending lawsuit, recorded lis pendens, and contention that Nelson's second trust deed and thus a foreclosure sale under it were invalid, no willing purchaser would pay $180,000 for the property on such a sale.
Manifestly, no willing purchaser in an open market would have paid the full $180,000 for the property under the circumstances of Woodburn's recorded claim. Such a buyer would take the property subject to the expense and vicissitudes of a lawsuit which could result in the purchaser obtaining nothing at all for the price he had paid.
The circumstances that attended the instant foreclosure sale are, fortunately, rare, and we find little relevant judicial authority. (3) But we note the following: The meaning of "fair market value" varies with the circumstances and situations to which the term is applied. (John W. McDougall Company v. Atkins (1957) 201 Tenn. 589 [301 S.W.2d 335, 337].) It is "determined by all the available circumstances" (Eastern S.S. Lines v. United States (D.Mass. 1947) 74 F. Supp. 37, 38 [affd. 171 F.2d 589]), and after "`taking into account all considerations that fairly might be brought forward and reasonably given substantial weight in ... bargaining'" (Edgcomb Steel of New England v. State (1957) 100 N.H. 480 [131 A.2d 70, 76]).
(2b) As noted, the critical situation here, unconsidered by the trial court, was the clouded and patently unmerchantable condition of the property's title.
We are of the opinion that the legislative intent behind the enactment of Code of Civil Procedure section 726 was that its "fair value" was to be determined by all of the circumstances attending the property at a foreclosure sale, including the state of its title and merchantability. Such statutes will be construed "so as to make them workable and reasonable." (City of Santa Clara v. Von Raesfeld (1970) 3 Cal.3d 239, 248 [90 Cal. Rptr. 8, 474 P.2d 976].) And we find it fair to iterate that the trial court upon further consideration seemed to have reached the same conclusion.
It follows that the trial court having erroneously interpreted section 726 to the prejudice of Nelson, the judgment declaring that he take no deficiency must be reversed.
*80 (4) We proceed now to the appeal of Orosco from the order setting aside the foreclosure sale on Nelson's motion.
Here, Orosco's initial contention is that by virtue of Nelson's pending appeal from the earlier order denying a deficiency judgment, the trial court under Code of Civil Procedure section 916 was deprived of jurisdiction to determine his later motion to set aside the foreclosure sale.
Code of Civil Procedure section 916, subdivision (a), as relevant to the case at hand provides that the "perfecting of an appeal stays proceedings in the trial court upon the ... order appealed from or upon the matters embraced therein or affected thereby, ..." (Italics added.)
The order denying Nelson a deficiency judgment, had it become final, would have forever denied him such relief. The later order setting aside the foreclosure sale had the effect of permitting another such sale, with the attendant right granted by Code of Civil Procedure section 726 to a deficiency judgment upon a bid of less than the property's fair market value. It thus becomes manifest that the trial court's second order setting aside the foreclosure sale "affected" its first order denying a deficiency judgment. Upon the first appeal, proceedings upon Nelson's second motion were stayed by operation of the statute.
The order setting aside the foreclosure sale will accordingly be reversed.
But for the lack of jurisdiction resulting from the application of Code of Civil Procedure section 916, subdivision (a), we could reasonably express no disagreement with the trial court's findings of fact on Nelson's motion to set aside the foreclosure sale.
Upon remand, the superior court will exercise its broad equitable powers to the end that it shall, as noted, afford complete relief as between the parties. If the court shall determine that the problems and uncertainties attending the foreclosure sale were brought about by Orosco without substantial fault on Nelson's part, it will exercise those powers, where reasonably possible, to insure that Nelson be made whole.
The judgment of January 24, 1978, that plaintiffs Robert A. Nelson and Sandra M. Nelson take nothing by way of a deficiency is reversed. *81 The order of May 16, 1978 "(regarding motion to set aside foreclosure sale of real property)" is reversed. Plaintiffs Nelson will recover their costs of the appeals.
Newsom, J., and Grodin, J., concurred.
A petition for a rehearing was denied April 15, 1981, and the petition of defendants and appellants for a hearing by the Supreme Court was denied May 13, 1981.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7468
RODNEY WILLIAM PITTS,
Petitioner - Appellant,
v.
FRANK BISHOP, JR.; BRIAN E. FROSH, The Attorney General of the
State of Maryland,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District Judge.
(1:16-cv-01493-JFM)
Submitted: January 31, 2017 Decided: February 3, 2017
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rodney William Pitts, Appellant Pro Se. Edward John Kelley, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney William Pitts seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2254 (2012) petition.
The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A)
(2012). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2012). When the district court denies relief
on the merits, a prisoner satisfies this standard by demonstrating
that reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must demonstrate
both that the dispositive procedural ruling is debatable, and that
the petition states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude that
Pitts has not made the requisite showing. Accordingly, we deny a
certificate of appealability, deny leave to proceed in forma
pauperis, and dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented
2
in the materials before this court and argument would not aid the
decisional process.
DISMISSED
3
|
521 So.2d 931 (1988)
CITY BANK OF ALABAMA and Guy Sutterer
v.
Robert ESKRIDGE.
86-992.
Supreme Court of Alabama.
February 5, 1988.
*932 Julie B. DiVito, Birmingham, for appellant.
David Cromwell Johnson and Leila Hirayama, Birmingham, for appellee.
JONES, Justice.
This is an appeal from a judgment based on a jury verdict awarding Robert Eskridge $1,138.98 in compensatory damages and $62,500 in punitive damages against City Bank of Alabama (now Bank of Alabama) and Guy Sutterer for fraud regarding Eskridge's withdrawal of a certificate of deposit (CD).
In January 1984, Robert Eskridge purchased a three-year CD for $44,000 from City Bank; he concurrently opened a checking account at the bank, to which the interest on the certificate was to be credited on the first of each month. At the time he purchased the CD, Eskridge was told that an early withdrawal penalty would apply if he redeemed the certificate before the three-year maturity date. He also signed a written agreement to this effect on the day of purchase.
Interest from the CD was properly credited to Eskridge's checking account in February, March, and April of 1984; in May, July, and August, however, interest was not credited to the checking account, due to computer error at the bank. After being notified by Eskridge of the error in his checking account each month that error occurred, the bank would perform the credit manually and attempt to correct the computer problem.
In August 1984, Eskridge notified the bank, through Guy Sutterer, a vice-president of the bank, that he wished to withdraw his CD due to the errors in crediting interest to his checking account. Eskridge testified that Sutterer agreed to waive the interest penalty on the early withdrawal of the CD and agreed that the bank would pay the penalty required by federal law. Although Sutterer denied making this statement, Robert Eskridge's brother, David, testified that Sutterer repeated the statement to him and said that an account existed at the bank from which to pay the penalty for Eskridge.
The withdrawal was by a cashier's check from the bank for $38,471.64; that figure reflected the deduction of a loan pay-off and an interest penalty of $1,139.98 for early withdrawal of the CD. Eskridge testified that the first time he knew the penalty would be assessed was when he received the check from the bank.
Eskridge filed suit against the bank, alleging breach of contract and fraud, but later voluntarily dismissed the breach of contract count. The trial of the case resulted in a jury award of compensatory and punitive damages in favor of Eskridge. The bank's motion for new trial was denied by the trial court. The issue to be resolved by this Court is whether the award of punitive damages to Eskridge requires intervention by the trial court due to excessiveness.
The right to a trial by jury in civil cases is guaranteed by § 11, Alabama Constitution; therefore, a jury verdict will not be set aside unless it is flawed, thereby losing its constitutional protection. Upon finding a verdict to be flawed, the trial court, pursuant to A.R.Civ.P. 59(f), and this Court, pursuant to Code 1975, § 12-22-71, may interfere with it. At what point, however, will a damages award require a finding of a flawed jury verdict?
"First, it may include or exclude a sum which is clearly recoverable or not as a matter of law, or which is totally unsupported by the evidence, where there is an exact standard or rule of law that makes the damages legally and mathematically ascertainable at a precise figure. In these situations, a trial court may, and should, reduce or increase the amount of the verdict to reflect the amount to which the parties are entitled as a matter of law. Second, a jury verdict may be flawed because it results, not from the evidence and applicable law, but from bias, passion, prejudice, corruption, or other improper motive. It is this category *933 of cases that most troubles both trial and appellate courts."
Hammond v. City of Gadsden, 493 So.2d 1374, 1378 (Ala.1986).
Thus, the invocation of our statutory authority to determine the proper amount of recovery and affirm the judgment, subject to the filing of a remittitur of the amount in excess of the proper amount, is dependent upon our holding that the presumption of correctness of the jury verdict is overcome by a clear showing that the amount of the verdict is the product of bias, passion, prejudice, corruption, or other improper motive. Ridout's-Brown Service, Inc. v. Holloway, 397 So.2d 125 (Ala. 1981), citing Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963). The presumption of the correctness of the jury's verdict, alleged to be excessive, is strengthened when the trial judge overrules a motion for new trial. Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975).
In deciding whether a jury verdict is excessive, a trial judge may not substitute his judgment for that of the jury. Hammond, 493 So.2d at 1378, citing B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala. 1979), and Vest, 275 Ala. at 288, 154 So.2d at 298. Denying the bank's motion for new trial on grounds of excessiveness of the verdict, pursuant to Hammond, the court made the following findings:
"1. The jury was an average jury composed of sincere, able, concerned, sensitive and mentally acute men and women who performed their sworn duties to the best of their abilities.
"2. There is no evidence before the court of any misconduct, bias, passion, prejudice, corruption, improper motive, or cause not consistent with truth and the facts.
"3. The jury took ample time to have reasonably considered all of the evidence in the case and made its decision based on the law and evidence as understood by it. There is always the possibility that another jury could have awarded more damages and yet another less damages. The Court will not speculate as to what another jury would have done. However, the Court's conscience is not shocked by the amount of the verdict in this case.
"4. The totality of the circumstances in this case in regard to the relationship of the parties and the alleged misconduct of the Defendants was more than enough to render the Defendants blameworthy.
"5. Considering the totality of the circumstances and the character and degree of the alleged wrong, the jury was justified in awarding sufficient damages to prevent similar wrongs in the future especially in light of the fact that the verdict may have little if any impact on these Defendants unless the verdict is substantial."
Punitive damages are not awarded because the injured party is entitled to them as a matter of right; they are awarded as a punishment to the wrongdoer and to deter him and others in the same or similar situation from such wrongdoing in the future. D. Corley, C. Gamble, Ala. Law of Damages, § 4-1 (1982). In a fraud action, the plaintiff is entitled to punitive damages when the fraud is malicious, oppressive, or gross, or the misrepresentation is made with knowledge of its falsity and with the purpose of injuring or defrauding. United States Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978). Punitive damages need bear no relationship to actual damages, and their award is left largely to the discretion of the jury. Ala.Law of Damages, supra.
We are unwilling to exercise our statutory authority and invade the province of the jury in this case and set aside, or reduce, its verdict on grounds of excessiveness. The trial court's review of the verdict reflects those considerations essential to a critique of a punitive damages award: The culpability or gravity of the defendant's conduct (Ridout's-Brown Service, Inc., supra); the desirability of discouraging others from similar conduct (Ford Motor Credit Co. v. Washington, 420 So.2d 14 (Ala.1982)); the impact upon the parties (Alabama Power Co. v. Hussey, 291 Ala. 586, 285 So.2d 92 (1973)); and the impact upon third parties (Hammond, supra).
*934 The question of fact as to whether Sutterer agreed to waive the early withdrawal penalty was resolved by the jury; and the amount of the verdict, standing alone, is insufficient to demonstrate bias, passion, prejudice, corruption, or other improper motive, particularly in view of the trial court's post-judgment findings to the contrary.
Because the bank has failed to overcome the presumption of correctness attached to the jury verdict, which was strengthened by the trial court's denial of the bank's post-judgment motion for a new trial (which denial was supported by the findings required by Hammond), we find no reversible error.
AFFIRMED.
TORBERT, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
|
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 46 WAL 2019
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
BRANDON WILLIAM GROVER, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 31st day of July, 2019, the Petition for Allowance of Appeal is
DENIED.
Justice Wecht did not participate in the consideration or decision of this matter.
|
444 F.3d 556
UNITED STATES of America, Plaintiff-Appellant,v.Kevin McCLAIN; George Brandt, III; Jason Davis, Defendants-Appellees.
No. 04-5887.
United States Court of Appeals, Sixth Circuit.
Argued: July 20, 2005.
Decided and Filed: December 2, 2005.
As Revised March 31, 2006.
COPYRIGHT MATERIAL OMITTED ARGUED: Thomas M. Gannon, United States Department of Justice, Washington, D.C., for Appellant. Richard L. Gaines, Eldridge & Gaines, Knoxville, Tennessee, Peter J. Strianse, Tune, Entrekin & White, Nashville, Tennessee, for Appellees. ON BRIEF: Thomas M. Gannon, United States Department of Justice, Washington, D.C., for Appellant. Richard L. Gaines, Eldridge & Gaines, Knoxville, Tennessee, Peter J. Strianse, Tune, Entrekin & White, Nashville, Tennessee, R. Price Nimmo, Nimmo, Hoehn & Nimmo, Nashville, Tennessee, for Appellees.
Before: BOGGS, Chief Judge; BATCHELDER and GIBBONS, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court, in which GIBBONS, J., joined. BOGGS, C.J. (pp. 566-569), delivered a separate opinion concurring in the judgment.
OPINION
ALICE M. BATCHELDER, Circuit Judge.
1
On July 25, 2002, a federal grand jury returned an indictment charging Defendants-Appellees Kevin McClain, George Brandt III, and Jason Davis with conspiracy and substantive marijuana trafficking in violation of 21 U.S.C. §§ 841(a)(1) and 846. The defendants moved to suppress all evidence obtained during and as a consequence of a warrantless search of McClain's residence on October 12, 2001, including evidence seized during execution of search warrants issued on the basis of evidence obtained as a result of that initial warrantless search. The district court granted the motions, holding that the warrantless search of McClain's residence was not justified by exigent circumstances, the good faith exception to the exclusionary rule did not apply to these circumstances, and the derivative evidence must be suppressed. Although we agree with the district court's conclusion that there was neither probable cause nor exigency to justify the warrantless search of McClain's residence, we find that, under the particular facts of this case, the good faith exception to the exclusionary rule applies. We will therefore reverse the judgment granting the motions to suppress.
I. FACTUAL AND PROCEDURAL HISTORY
2
At around 9:30 p.m. on October 12, 2001, the dispatch operator for the Hendersonville, Tennessee Police Department received a phone call from a concerned neighbor who reported seeing a light on in a house located at 123 Imperial Point, which had been vacant for several weeks. The police dispatcher contacted Officer Michael Germany and notified him of a possible "suspicious incident" at that address. Upon arriving near the scene a couple minutes later, Officer Germany parked his police cruiser about 100 yards away and took up a position behind a tree across the street from the residence. From that vantage point, Officer Germany watched the house for a few moments and confirmed that lights were on in a bedroom on the west side of the house and in the dining area in the center of the house.
3
Moving to a position behind a tree closer to the house, Officer Germany watched the house for several more minutes but observed no movement either inside or outside the house. He then performed a complete inspection of the outside of the house and found no open or unlocked windows, doors or gates, and no sign of forced entry or illegal activity, until he reached the front of the house. There, he found that the front door was slightly ajar; that is, the wooden door was touching the door frame, but the door was not fully secured, the dead bolt lock was visible, and he could see a sliver of light showing through the crack, which he estimated to be less than an inch wide.
4
Although Officer Germany had seen no movement in or around the house, or any signs of forced entry or vandalism, or any kind of criminal activity, he was nevertheless concerned that the open door and the lights might be signs that a burglary was in progress or that juveniles had entered the house to vandalize or engage in underage drinking. He therefore sent out a general call for back-up, and within a few minutes, Officer Jason Williams arrived at the house. Officer Germany suggested that they "clear" the house because the open door could indicate a crime in progress, and the officers walked up to the front porch and pushed the wooden door the rest of the way open. Officer Germany announced their presence loud enough so that anyone inside could hear him, and after waiting for "approximately two to five minutes" and receiving no response from inside the house, they entered with their guns drawn. Moving from room to room in order to clear it of any potential perpetrators, the officers found no furniture in the house except a television set on the living room floor. They found fast food wrappers on the kitchen counter and a piece of luggage and a child's toy in one of the bedrooms in the house. After securing the upstairs rooms, the officers moved to the basement where they observed that the windows were covered with inward-facing reflective paper and that a large room contained a substantial amount of electrical wiring connected to a junction box and what appeared to be plant stimulators. The basement also contained a number of boxes marked as grow lights. While neither officer saw any marijuana in the house or observed any illegal activity, both concluded that a marijuana grow operation was being set up in the basement of the house. Following their search of the basement, the officers cleared the garage and, finding nothing, left the premises.
5
That same night, Officer Germany's supervisor contacted Officer Brian Murphy of the Summer County Drug Task Force concerning the search at 123 Imperial Point. Officer Murphy determined that the home was owned by Kevin and Tina McClain. The next day, after receiving Officer Germany's report on the search of 123 Imperial Point, Officer Murphy began investigating a possible marijuana grow operation at the home. He placed the property under off-and-on surveillance for several weeks and eventually determined that McClain, Brandt and Davis were engaged in setting up a marijuana grow operation at 123 Imperial Point and at several other residences.
6
On November 27, 2001, Officer Murphy obtained warrants to search the house at 123 Imperial Point and five other properties that he had linked to the defendants through his investigation and surveillance. The warrant affidavit explicitly relied in part on evidence obtained during the initial warrantless search of 123 Imperial Point conducted on October 12 and described the circumstances of that search. When law enforcement authorities executed the warrants on November 28, 2001, they recovered from 123 Imperial Point 348 marijuana plants and various types of plant growing equipment. The searches of the other five properties for which Officer Murphy had obtained warrants also uncovered numerous marijuana plants and plant-growing paraphernalia.
7
Based on information obtained during these searches, as well as post-arrest statements made to the police by Brandt and Davis, a federal grand jury returned a three-count indictment charging McClain, Brandt, and Davis with conspiring to manufacture and to possess with intent to distribute more than 1,000 marijuana plants in violation of 21 U.S.C. § 846; manufacturing and possessing with intent to distribute 1,000 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1); and possessing with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). McClain moved to suppress the evidence found during the searches on October 12 and November 28 of his home located at 123 Imperial Point. Brandt and Davis moved to suppress evidence obtained during the searches, as well as their post-arrest statements. After an evidentiary hearing, the district court granted each defendant's motion to suppress.1 The court found that the warrantless entry and search of 123 Imperial Point violated the Fourth Amendment, necessitating the suppression of all evidence derivative of that warrantless search, and that the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not apply. The United States filed a timely notice of appeal.
II. DISCUSSION
A. STANDARD OF REVIEW
8
The government contends on appeal that the district court erred in granting the defendants' motions to suppress. In reviewing a district court's decision regarding a motion to suppress evidence, we review all factual findings for clear error and all legal conclusions de novo. United States v. Yoon, 398 F.3d 802, 805 (6th Cir.2005). In particular, we review de novo the district court's determinations that no exigency existed to justify the Hendersonville police officers' warrantless entry into McClain's home, that all subsequently seized evidence constituted the fruit of the initial illegal search, and that the good faith exception to the exclusionary rule does not apply to this evidence. See United States v. Rohrig, 98 F.3d 1506, 1511 (6th Cir.1996).
B. LEGALITY OF THE WARRANTLESS SEARCH
9
We first address the legality of the warrantless search of McClain's residence. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. CONST. amend. IV. Because the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), "a search carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of `exigent circumstances.'" Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). More precisely, the police may not enter a private residence without a warrant unless both "probable cause plus exigent circumstances" exist. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) (per curiam); United States v. Chambers, 395 F.3d 563, 572 (6th Cir.2005). There is no dispute that the warrantless search of McClain's home on October 12, was "presumptively unreasonable" under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The government, however, contends that probable cause and exigent circumstances justified the warrantless search.
10
In general, exigent circumstances exist when "real immediate and serious consequences" would certainly occur if a police officer were to "postpone[ ] action to get a warrant." Welsh v. Wisconsin, 466 U.S. 740, 751, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (internal quotation omitted). "The exigent circumstances exception relies on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant." United States v. Radka, 904 F.2d 357, 361 (6th Cir.1990). We have identified the emergency situations giving rise to the exigent circumstances exception to the warrant requirement as (1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent a suspect's escape, or (4) a risk of danger to the police or others. United States v. Williams, 354 F.3d 497, 503 (6th Cir.2003) (citing United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994)). Because warrantless searches are presumptively unreasonable under the Fourth Amendment, the government bears a "heavy burden" of proving exigency. Welsh, 466 U.S. at 749-50, 104 S.Ct. 2091.
11
In attempting to satisfy its burden, the government primarily relies on the established precedent in this circuit that the police may "enter a residence without a warrant if there is probable cause to believe that there is a burglary in progress." United States v. Reed, 141 F.3d 644, 649 (6th Cir.1998) (citing United States v. Johnson, 9 F.3d 506, 509-10 (6th Cir. 1993)). Because both probable cause and exigency must be present for the police to make a warrantless entry and search of a home, we emphasized in Johnson that when the police have probable cause to believe that a burglary is in progress, they are also confronted with the necessary exigency, that is, the need "to ensure the protection of everyone on the scene and to prevent the loss or destruction of the owner's property." Johnson, 9 F.3d at 510. The government further relies on our statement in Rohrig that "we are not precluded from fashioning a new exigency" that would justify the warrantless entry into a citizen's home. Rohrig, 98 F.3d at 1519; see also United States v. Plavcak, 411 F.3d 655, 663 (6th Cir.2005). But neither Johnson nor Rohrig helps the government here because the government's argument is premised on its claim that the officers had probable cause to believe a burglary was in progress at 123 Imperial Point. As we explain below, the undisputed facts in this case demonstrate that the police did not have probable cause to believe that a burglary was in progress; hence there was no exigency as a consequence of the possible burglary such that Johnson would support the warrantless entry. And because the government's premise has always been that the exigency was created by probable cause to believe there was a burglary in progress, we have no occasion to consider whether, as Rohrig might permit, we should fashion a new exigency in this case.
12
"Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (en banc) (internal quotation omitted). Under this "flexible, common-sense standard," Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the establishment of probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). However, the "mere possibility" that a crime could be occurring within a home is not sufficient to justify a warrantless search; the police must have an "objectively reasonable basis for their belief" that a crime is being committed. United States v. Ukomadu, 236 F.3d 333, 337 (6th Cir.2001). Likewise, mere speculation that a crime could be occurring is insufficient to establish probable cause. See McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 519 (6th Cir.2001).
13
In our view, a neighbor's phone call indicating that the owners had moved out of the house at 123 Imperial Point several weeks earlier and that there was a light on in the house that had not been on before, even coupled with the officers' discovery of a slightly ajar front door, does not present the type of objective facts necessary to establish probable cause that a burglary was in progress at the house. Under similar circumstances, our precedent has required more — namely, the existence outside the searched premises of some physical signs of a burglary or some direct evidence of a home invasion. Johnson, 9 F.3d at 509-10 (holding that probable cause and exigent circumstances justified a warrantless search when officers responded to a burglary in progress after a neighbor reported seeing individuals crawl through a window of a residence, and upon arriving on the scene, the officers observed a broken window and two individuals inside); United States v. Estese, 479 F.2d 1273, 1274 (6th Cir.1973) (holding that exigent circumstances justified a warrantless search after the police responded to a radio call and discovered that the door to an apartment had been pried open). We agree with the district court that the facts of this case are more analogous to the facts of United States v. Selberg, 630 F.2d 1292 (8th Cir.1980), in which the Eighth Circuit held that a neighbor's contacting the police to report that the front door of a nearby home was open, in the absence of any other signs of a burglary or suspicious activity, did not justify the warrantless entry into the home. Id. at 1293-94, 1296.
14
We understand that these officers were responding to a "suspicious incident" call and, and we find no evidence that they acted in bad faith when, after finding the front door to McClain's home slightly ajar, they went inside to ensure that no criminal activity was afoot. Sometimes the line between good police work and a constitutional violation is fine indeed. Here, however, the officers' own testimony at the suppression hearing reveals that they had no objective basis for their concern that a burglary was being committed at McClain's residence. Both officers testified that there was no emergency necessitating their entry into the home. Officer Germany testified that upon inspecting the exterior of the house, he observed no movement in or around the home, no signs of forced entry or vandalism, and no suspicious noises or odors emanating from the house. Officer Williams similarly testified that upon his arrival he observed no signs of any criminal activity. Officer Williams even stated that the officers' hunch that a burglary could be occurring inside the residence was mere "speculation." Speculation does not equate to probable cause. See Ferguson, 8 F.3d at 392 (defining probable cause as "reasonable grounds for belief, supported by less than prima facie proof but more than a mere suspicion") (emphasis added). Indeed, mere speculation that a crime could be occurring, without more, simply does not suffice to overcome the presumption of unconstitutionality attached to a warrantless intrusion into the sanctity of the home.
15
Because the government must demonstrate both probable cause and exigent circumstances to justify the warrantless entry, we need not reach the issue of exigent circumstances. We would simply note that both officers explicitly testified that there was no emergency necessitating their entry into McClain's home. The sine qua non of the exigent circumstances analysis is the existence of an "emergency situation." Radka, 904 F.2d at 361. "Where, as here, officers are not responding to an emergency there must be compelling reasons to justify the absence of a search warrant." McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (emphasis added). Such compelling reasons cannot be established under the facts of this case where officers who were not faced with an emergency situation, however good their intentions, had only an unparticularized hunch that a crime was being committed inside McClain's home.
16
Because neither probable cause nor exigent circumstances justified the officers' warrantless entry and search of McClain's home on October 12, 2001, we find no error in the district court's conclusion that the entry and search were in violation of the Fourth Amendment.
17
C. VALIDITY OF THE WARRANT SEARCHES AND THE GOOD FAITH EXCEPTION
18
Our analysis does not end here, however. Under the unique circumstances presented by this case, we are called upon to address an issue of first impression in this circuit — namely, we must reconcile the "good faith" exception established in Leon, 468 U.S. at 919, 104 S.Ct. 3405, with the "fruit of the poisonous tree" doctrine first coined in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The essence of that doctrine is that evidence unlawfully obtained, including all derivative evidence flowing from it, should be suppressed. See Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The exclusionary rule would therefore work to exclude all evidence obtained subsequent to and as a consequence of an illegal search because, as the fruit of a prior illegality, such evidence is tainted unless (1) the government learns of the evidence from an "independent source," Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920); (2) the connection with the unlawful search becomes "so attenuated as to dissipate the taint," Nardone, 308 U.S. at 341, 60 S.Ct. 266; or (3) the evidence "would inevitably have been discovered." Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). We find that none of these three exceptions to the exclusionary rule applies here.
19
In Leon, the Supreme Court announced another exception to the exclusionary rule, holding that the rule should not apply to evidence obtained by an officer who conducts a search in reasonable reliance on a search warrant that was issued by a neutral and detached magistrate, but is ultimately found to be unsupported by probable cause or otherwise defective. Leon, 468 U.S. at 920-22, 104 S.Ct. 3405. In general, suppression of evidence obtained pursuant to a search warrant later found to be defective "should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Id. at 918, 104 S.Ct. 3405. In particular, the Leon court explained, suppression is appropriate if (1) the magistrate was "misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;" (2) the magistrate "abandoned his judicial role" or neutrality; (3) the warrant was "so lacking in indicia of probable cause" as to render official belief in its existence unreasonable; or (4) the warrant was so "facially deficient" that it could not reasonably be presumed valid. Id. at 923, 104 S.Ct. 3405. We agree with the government that none of these factors is present in this case.
20
The wrinkle in the case before us today is that the warrants on which the officers relied — reasonably, we think — to search 123 Imperial Point a second time and to search the five other properties were themselves the fruit of the poisonous tree. The question therefore becomes whether the good faith exception to the exclusionary rule can apply in a situation in which the affidavit supporting the search warrant is tainted by evidence obtained in violation of the Fourth Amendment. The Ninth and Eleventh Circuits have answered that question in the negative. United States v. McGough, 412 F.3d 1232, 1239-40 (11th Cir.2005) (holding that the good faith exception does not apply where a search warrant is issued on the basis of evidence obtained as the result of an illegal search); United States v. Wanless, 882 F.2d 1459, 1466-67 (9th Cir.1989) (same); United States v. Vasey, 834 F.2d 782, 789 (9th Cir.1987) (holding that a "magistrate's consideration of the evidence does not sanitize the taint of the illegal warrantless search"). On the other hand, the Second and Eighth Circuits have held that, at least under some circumstances, the Leon good faith exception can still apply when the warrant affidavit relies on evidence obtained in violation of the Fourth Amendment.
21
In United States v. Fletcher, 91 F.3d 48, 51-52 (8th Cir.1996), the Eighth Circuit held that the Leon exception was applicable to the warrant-authorized search of a bag, even though the officers' initial detention of the bag in order to subject it to a dog sniff violated the Fourth Amendment. The court explained that the circumstances surrounding both the initial detention of the bag and the subsequent issuance of the warrant were "sufficiently close to the line of validity" that the officers had "an objectively reasonable belief that they possessed a reasonable suspicion such as would support the valid detention of [the] bag as well as an objectively reasonable belief that the warrant issued was valid." Id. at 52. See also United States v. Kiser, 948 F.2d 418, 421-22 (8th Cir.1991) (same); United States v. White, 890 F.2d 1413, 1419 (8th Cir.1989) (same); United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985) (holding Leon applicable to the subsequent warrant-authorized search of an apartment, even though the affidavit contained evidence obtained in violation of the Fourth Amendment, because the officer, who was acting in good faith, disclosed all information to the magistrate and had no reason to believe that his actions were unconstitutional); but see United States v. Reilly, 76 F.3d 1271, 1281-82 (2d Cir.1996) (holding Leon inapplicable where officers seeking warrant acted in clear bad faith by failing to disclose to the magistrate in their warrant affidavit the circumstances surrounding a dubious pre-warrant search); United States v. O'Neal, 17 F.3d 239, 243 n. 6 (8th Cir.1994) (holding that a magistrate's issuance of a search warrant could not sanitize prior illegal conduct when the method by which evidence supporting the search warrant was seized was "clearly illegal").
22
We conclude that this is one of those unique cases in which the Leon good faith exception should apply despite an earlier Fourth Amendment violation. We find White's statement of the rule in Leon particularly instructive: "evidence seized pursuant to a warrant, even if in fact obtained in violation of the Fourth Amendment, is not subject to the exclusionary rule if an objectively reasonable officer could have believed the seizure valid." White, 890 F.2d at 1419. The court in White refused to apply the exclusionary rule because the facts surrounding the initial Fourth Amendment violation were "close enough to the line of validity to make the officer's belief in the validity of the warrant objectively reasonable." Id. The same is true here. The facts surrounding these officers' warrantless entry into the house at 123 Imperial Point were not sufficient to establish probable cause to believe a burglary was in progress, but we do not believe that the officers were objectively unreasonable in suspecting that criminal activity was occurring inside McClain's home, and we find no evidence that the officers knew they were violating the Fourth Amendment by performing a protective sweep of the home. More importantly, the officers who sought and executed the search warrants were not the same officers who performed the initial warrantless search, and Officer Murphy's warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding the initial warrantless search. On the basis of that affidavit, the magistrate issued the search warrants. There was indeed nothing more that Officer Murphy "could have or should have done under these circumstances to be sure his search would be legal." Thomas, 757 F.2d at 1368. Because the officers who sought and executed the search warrants acted with good faith, and because the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively reasonable, we conclude that despite the initial Fourth Amendment violation, the Leon exception bars application of the exclusionary rule in this case. See Leon, 468 U.S. at 920, 104 S.Ct. 3405 (explaining that the exclusion of evidence will not further the purposes of the exclusionary rule "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope").
III. CONCLUSION
23
For the foregoing reasons, we REVERSE the judgment of the district court and we REMAND this case for further proceedings consistent with this opinion.
Notes:
1
The United States argued before the district court that Brandt and Davis did not have standing to challenge the search of 123 Imperial Point. The district court concluded that McClain had standing because 123 Imperial Point was his home and was not abandoned, found that Brandt had standing, and did not discuss Davis. The court then immediately went on to discuss the suppression issues, leaving the standing issue partially unresolved. Although the record provides no basis on which this court could find Davis had standing to contest the search, the United States did not raise the issue of standing before this court. We therefore have no occasion to discuss the matter
24
BOGGS, Chief Judge, concurring in the judgment.
25
Although I concur with the majority's decision to reverse the judgment of district court, I write separately because, respectfully, I do not agree that the initial search of 123 Imperial Point was unreasonable.
26
To overcome the presumption that a warrantless search of a private residence is presumptively unreasonable, the police must demonstrate probable cause and, in this instance, exigent circumstances. In this circuit, only four situations clearly give rise to exigent circumstances: (1) hot pursuit of a fleeing suspect; (2) imminent destruction of evidence; (3) need to prevent a suspect's escape; and (4) danger to the police or to the public. United States v. Johnson, 22 F.3d 674, 680 (6th Cir.1994); see also United States v. Haddix, 239 F.3d 766, 767 (6th Cir.2001). However, following the lead of other circuits, this circuit has also upheld warrantless searches conducted during suspected burglary investigations under the exigent circumstances exception. United States v. Johnson, 9 F.3d 506, 509 (6th Cir.1993); United States v. Estese, 479 F.2d 1273, 1274 (6th Cir. 1973). In addition, the court has opined that:
27
these existing categories do not occupy the entire field of situations in which a warrantless entry may be justified. As an initial matter, the Fourth Amendment's broad language of "reasonableness" is flatly at odds with any claim of a fixed and immutable list of established exigencies. Moreover, such a claim would ignore the case-by-case and fact-specific development of the existing categories of exigent circumstances. None of the presently recognized exigencies can claim any special-constitutional status; instead, each was a product ... of a particular case in light of underlying Fourth Amendment principles.... Therefore, if the situation dictates, we are not precluded from fashioning a new exigency that justifies the warrantless entry into Defendant's home.
28
United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir.1996). The court assesses the police officers' belief in the existence of an exigent circumstance based upon the "objective facts reasonably known to, or discoverable by, the officers at the time of the search." United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995). See also Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). But this is a relatively forgiving standard, as the Supreme Court explained:
29
"Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability."
30
Ibid. (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)).
31
Upon approaching 123 Imperial Point, Officer Germany knew that the house had reportedly been vacant for some time and that a neighbor had called and reported a light on inside. Checking the doors and windows, Officer Germany saw and heard nothing amiss until he reached the front door, which he found ajar. The fact that the officer neither saw signs of forced entry nor heard any noises does not mean there were no possible crimes being committed inside. The house was two stories; the officer testified that a light was on upstairs. Obviously, he could not see into the second floor windows. The house was also not small. It had several bedrooms and a basement. It certainly would be possible for an intruder to have been inside the house, even talking or vandalizing the place, without noise being audible from outside. Therefore, all the officer knew was that a house, reported by a named neighbor to have been vacant for some time, had lights on, no car visible suggesting the owner had returned, and that the front door was ajar, with no porch lights on. Even if the officer could see no signs that the door had been forced, the door could have been left unlocked, the lock could have been picked, or the keys stolen.
32
The officer had to use his best professional judgment. Admittedly, as Appellees suggest, the officer could have taken other action. Even though it was a Friday night, he could have tried, but did not, to determine who owned the house and attempt to contact him about the supposed intruder. He could have set up a barricade around the house and waited for any intruder to leave. Or he could simply have waited until he had located a judge who would sign a search warrant. While any of these courses of action might have been possible, a "court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed ... years after the fact." Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). I believe that Officer Germany did act reasonably.
33
The cases Appellees cite, to argue that this situation could not reasonably lead an officer to believe there was an exigent circumstance, simply do not compare with the case at bar. In United States v. Selberg, 630 F.2d 1292 (8th Cir.1980), the door to the trailer had been open when Selberg left the day before. The trailer was not vacant, and all the officer needed to do to satisfy himself that nothing was amiss was look inside. He did not need to enter to see that no burglary had occurred. In United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), the police waited hours before raiding Morgan's house and did so based solely on the warning of an anonymous person that Morgan was armed. Finally, in United States v. Williams, 354 F.3d 497 (6th Cir.2003), the DEA officer entered the house without a warrant, even though the testimony of the landlord concerning her suspicions of a marijuana growing operation would have been sufficient to get a warrant and despite the fact that nothing she told them suggested there was any immediate danger.
34
In none of these cases was an officer confronted with a situation in which he had limited information, all of which suggested the possibility of a crime in progress, and based on which he had to make an immediate decision about how to act. In such an ambiguous situation, the court can only ask that the police act "sensibly," as a reasonable man making reasonable assessments of probability would act under the same circumstances. Rodriguez, 497 U.S. at 186, 110 S.Ct. 2793.
35
In order to make a search reasonable, there must be a balance of the intrusiveness of the search against the exigency of the circumstance. Both are merely estimates of probability, and must be taken together. In this case, the balance of all the information available to the officers was that the house was indeed abandoned, and was not an active residence of a legitimate occupant. Nothing that they saw through the windows or, indeed, once they entered the house (fast food wrappers, one suitcase and a television, and potential contraband in an empty house) negated this perception. This is quite different from the Selberg case, where all the evidence available indicated a legitimate occupant who was merely temporarily absent. On the other hand the exigency, even were I to agree with the court's opinion that it did not amount to probable cause (but see page 569, infra) amounted to a very plausible belief that there was a good chance that criminal activity, perhaps even violent activity, was afoot.
36
As I attempt to assess the reasonableness of the officers' actions in entering the house (as opposed to simply allowing whatever was going on within the house to continue, perhaps for many hours until the hypothesized alternate courses could develop) the fact that this was a situation where a common sense assessment would be that a legitimate owner, could that person have been contacted, would want the officers to investigate the possible break in, tips me in the direction of finding the actions reasonable.
37
In addition, the various comments in the majority's opinion (at pages 5-6) that the officers conceded that there was no emergency may represent a somewhat overenthusiastic reading of the transcript. The supporting testimony comes from the officers, at best, agreeing with words put in their mouths in an artful cross examination.
38
Finally, a word on "probable cause." While courts have resisted mightily putting a number on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), at bottom a review of cases indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes probable cause. My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir.2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others.
39
However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location. How much more is a matter that is unclear in the case law. As the Supreme Court has very recently held: "Probable cause exists when `there is a fair probability that contraband or evidence of crime will be found in a particular place.'" United States v. Grubbs, ___ U.S. ___, 126 S.Ct. 1494, ___ L.Ed.2d ___ (2006) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). This "fair probability" standard clearly describes some probability, less than a preponderance, that would "warrant a man of reasonable caution in the belief" that evidence of a crime would be found in a search. Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793. Using this standard, my judgment would be that there was probable cause to believe that criminal activity was afoot in the house, based on the information on which the officers could reasonably rely that there was not a legitimate reason for activity in the house.
40
Therefore, I would uphold the initial warrantless search as falling under the exigent circumstances exception.
|
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328 F.3d 1207
UNITED STATES of America, Plaintiff-Appellee,v.Arleno Moreno INOCENCIO, Defendant-Appellant.
No. 02-10288.
United States Court of Appeals, Ninth Circuit.
Submitted May 9, 2003.*
Filed May 19, 2003.
Loretta A. Faymonville, Assistant Federal Defender, Honolulu, HI, for the defendant-appellant.
J. Michael Seabright, Assistant United States Attorney, Honolulu, HI, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CR-96-00221-ACK.
Before GOODWIN, RYMER, and T.G. NELSON, Circuit Judges.
OPINION
GOODWIN, Circuit Judge.
1
Arleno Moreno Inocencio appeals an amended judgment revoking her naturalization pursuant to 8 U.S.C. § 1451(e) as consequence of her conviction, in a jury trial, for naturalization fraud in violation of 18 U.S.C. § 1425(b). We affirm.
I.
2
On September 19, 1996, a jury found Inocencio guilty of three counts of naturalization fraud in violation of 18 U.S.C. § 1425(b) (Count 1) and 18 U.S.C. § 1015 (Counts 2 & 3). On January 13, 1997, the district court entered a judgment sentencing Inocencio to three years of probation, and ordering her to pay a $2,000 fine and a $150.00 special assessment. The government did not call to the attention of the district court the mandate of 8 U.S.C. § 1451(e), and the court did not, on its own initiative, order the revocation of Inocencio's fraudulent and void naturalization.
3
On September 21, 1998, two years into Inocencio's probation, and still asleep, the government filed a "satisfaction of judgment" with the district court, acknowledging that Inocencio had paid the fine and special assessment. Inocencio's probation officer reported that she had complied with the conditions of probation and that the period of probation had expired. The district court then entered an order on January 12, 2000 discharging Inocencio from probation and terminating the criminal case.
4
On March 20, 2002, the government lodged an application under 8 U.S.C. § 1451(e) for an order revoking Inocencio's naturalization because of her conviction on Count 1 for naturalization fraud in violation of 18 U.S.C. § 1425(b). The government served on Inocencio's last counsel of record (the Office of the Federal Defender for the District of Hawaii) a copy of this application.
5
On April 5, 2002, the Assistant Federal Defender who represented Inocencio at trial filed an objection to the government's application, questioning whether the Office of the Federal Defender continued to represent Inocencio and the sufficiency of notice. The objection also challenged the district court's jurisdiction to enter a revocation order because the criminal case had been closed.
6
The defender proposed that the government should now be required to file a civil action under 8 U.S.C. § 1451(a) to revoke Inocencio's naturalization, a proceeding the government may choose to follow when there has been no criminal conviction for immigration fraud. The district court rejected, as a useless formality, the proposal of civil litigation, and, without a hearing, granted the government's belated application for revocation of Inocencio's naturalization. This timely appeal followed.
II.
A. Jurisdiction
8 U.S.C. § 1451(e) provides:
7
When a person shall be convicted under section 1425 of Title 18 of knowingly procuring naturalization in violation of law, the court in which such conviction is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled. Jurisdiction is conferred on the courts having jurisdiction of the trial of such offense to make such adjudication.
8
(emphasis added).
9
Revocation of naturalization is mandatory upon conviction of naturalization fraud in violation of section 1425; Congress plainly contemplated that district courts having jurisdiction over criminal trials would automatically revoke naturalization upon such convictions. See United States v. Pasillas-Gaytan, 192 F.3d 864, 869 (9th Cir.1999) ("Conviction [under 18 U.S.C. § 1425] results in a revocation of citizenship."); United States v. Moses, 94 F.3d 182, 188 (5th Cir.1996) ("[Section 1451(e)] is mandatory—the district court shall revoke the citizenship if the individual is convicted under section 1425." (emphasis in original)); Bridges v. United States, 199 F.2d 845, 846 (9th Cir.1952) (explaining that revocation is "meant to be part of the criminal proceedings and not a separate proceeding" given that the statute "states that when a person is convicted of obtaining citizenship by fraud, his citizenship shall `thereupon' be revoked in the same court where he was convicted"), rev'd on other grounds, 346 U.S. 209, 73 S.Ct. 1055, 97 L.Ed. 1557 (1953).
10
Although we have found no case directly on point, the Eleventh Circuit's decision in United States v. Maduno, 40 F.3d 1212 (11th Cir.1994), supports the district court's jurisdiction to correct its ministerial oversight here. While the case arose in a different procedural context, and confronted the general rule that the filing of a notice of appeal ordinarily divests the trial court of jurisdiction, the court in Maduno rejected the defendant's argument that the notice of appeal from his conviction under 18 U.S.C. § 1425(b) divested the district court's jurisdiction to revoke his certificate of naturalization pursuant to 8 U.S.C. § 1451(e). The Maduno court reasoned that "revocation is a simple ministerial task and involves no exercise of discretion because the revocation is statutorily mandated." Id. at 1218. We agree with this reasoning.
11
The defendant cites a number of cases for the proposition that the district court had no jurisdiction to re-open her criminal case, leading with INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (disallowing the re-opening of deportation proceedings to permit an alien to apply for asylum and withholding of deportation), and United States v. Sumner, 226 F.3d 1005, 1015 (9th Cir.2000) (disallowing the re-opening of a criminal case to hear the defendant's motion to expunge valid arrest and conviction after the defendant's probationary period had terminated). These cases shed valuable light on the finality of judgments that did not involve a mere clerical error. When the question is correctly stated, the answer is obvious. The district court had no discretion here; this case involves a simple ministerial oversight.
12
Indeed, our reasoning in Sumner supports the district court's jurisdiction to correct its ministerial failure nunc pro tunc in this case. The defendant in that case had been convicted of a drug crime and sentenced under the Federal Youth Corrections Act (FYCA) to a probationary period and ordered to pay a fine. 226 F.3d at 1008. Twenty-six years later, the defendant filed a motion in the same criminal case to have his conviction expunged under the "set aside" provision in the FYCA. Id. The court noted that the FYCA allows "youthful offenders who are sentenced to probation to have their convictions automatically `set aside' where the district court grants an unconditional discharge from probation `prior to the expiration of the maximum period of probation [,]'" and that a district court has "limited jurisdiction to exercise its discretion retroactively to grant an early unconditional discharge and to set aside a conviction after the completion of the probationary period." Id. at 1009 (emphasis in original). But that jurisdiction, Sumner said, "has only been extended to those circumstances in which the failure to grant an early unconditional discharge from probation was due to an oversight by the district court." Id. (emphasis in original).
13
Because the defendant in Sumner had not demonstrated that the district court's failure to set aside his conviction during the probationary period was the result of a mere oversight, we held "that the FYCA did not confer jurisdiction upon the district court to set aside his conviction after the probationary period had expired." Id. at 1010. We reasoned:
14
The power to amend nunc pro tunc is a limited one, and may be used only where necessary to correct a clear mistake and prevent injustice.... [I]ts use is limited to making the record reflect what the district court actually intended to do at an earlier date, but which it did not sufficiently express or did not accomplish due to some error or inadvertence.
15
The purpose of the FYCA set aside provision was not to guarantee all youthful offenders a clean slate. Rather it was designed to provide them with an incentive to make the most of their period of probation or confinement. The incentive might be significantly weaker if convictions were set aside regardless of whether the youth offender, by his conduct during the probationary period, had convinced the sentencing court to discharge him before the expiration of his probationary term.
16
Id. (internal citations and quotation marks omitted).
17
Here, in contrast to the purpose of the set aside provision in the FYCA, the purpose of 8 U.S.C. § 1451(e) is to ensure the automatic revocation of naturalization upon a conviction for naturalization fraud under 18 U.S.C. § 1425. We hold that Congress' conferral of jurisdiction in section 1451(e) extends to permit a district court at any time to correct its ministerial failure to revoke naturalization upon a conviction under 18 U.S.C. § 1425. To hold otherwise would defeat Congress' plain intent in requiring revocation pursuant to section 1451(e) upon a conviction for violating 18 U.S.C. § 1425, and would force pointless civil proceedings under 8 U.S.C. § 1451(a).
18
Our recent decision in United States v. Penna, 319 F.3d 509 (9th Cir.2003), does not affect this conclusion. Penna involved a district court's jurisdiction to correct a sentence under Federal Rules of Criminal Procedure 35 and 36. No one here is claiming that the district court revoked (or could have revoked) a certificate of naturalization under color of either Rule 35 or 36. Revocation is a mandatory chore; failing to revoke did not result from a judgmental error but from oversight. Nor does revocation have to do with sentencing, which has its own regime for determining the extent of a district court's jurisdiction to correct errors. Rather, this case turns on how "having" jurisdiction in section 1425 should be interpreted.
B. Due Process
19
We also reject Inocencio's argument that the district court's correction of its oversight in this case five years after it sentenced her for having violated 18 U.S.C. § 1425(b) offends due process. Inocencio lost any right she had to naturalization after she was convicted of naturalization fraud. See Costello v. United States, 365 U.S. 265, 283-84, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). Addressing the due process ramifications of the government's 27-year delay in bringing civil proceedings to revoke naturalization under 8 U.S.C. § 1451(a), the Supreme Court in Costello explained:
20
We may assume that [Costello] has built a life in reliance upon [his] citizenship. But Congress has not enacted a time bar applicable to proceedings to revoke citizenship procured by fraud. [Costello] never had a right to his citizenship. Depriving him of his fraudulently acquired privilege, even after the lapse of many years, is not so unreasonable as to constitute a denial of due process.
21
Id. See also United States v. Martinez, 837 F.2d 861, 864-65 (9th Cir.1988) (no violation of due process where defendant was sentenced to incarceration but due to a clerical error was not ordered to report to serve his sentence until seven and one-half years later when the government discovered the mistake).
22
Inocencio also complains that she was not given proper notice or opportunity to respond before the district court revoked her naturalization. Criminal Rule 36 provides for "any notice the court considers appropriate." Because 8 U.S.C. § 1451(e) does not provide for notice or an opportunity to respond beyond the notice inherent in a trial and a verdict of guilty, revocation under that subsection is automatic. Cf. 8 U.S.C. § 1451(b) (requiring notice and opportunity to respond in revocation proceedings initiated under section 1451(a) (providing for revocation of naturalization through civil proceedings where naturalization was procured illegally, through concealment of a material fact, or by willful misrepresentation)). Because the district court revoked Inocencio's naturalization under § 1451(e) as part of the original criminal proceedings, re-opened for the sole purpose of correcting a clerical error, she was not entitled to notice or an opportunity to respond. Moreover, the government did serve a copy of its application to correct the judgment upon Inocencio's counsel of record and she has made no showing that she had a defense to the motion which was not raised by counsel.
23
AFFIRMED.
Notes:
*
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2)
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544 F.2d 861
Steve W. BODEKER, Plaintiff-Appellant,v.Frank DYSON, Chief of Police of the City of Dallas, et al.,Defendants-Appellees.
No. 75-3205.
United States Court of Appeals,Fifth Circuit.
Jan. 3, 1977.
Lee M. Simpson, Dallas, Tex. (Court-appointed), for plaintiff-appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before COLEMAN, CLARK and TJOFLAT, Circuit Judges.
PER CURIAM:
1
Plaintiff, Steve Bodeker, appeals from the dismissal of his 42 U.S.C. § 1983 (1970) suit which seeks $100,000 in damages from the defendants, Frank Dyson, Chief of Police of the City of Dallas, and four Dallas City Detectives and four Dallas City Police Officers (who are currently unknown) for alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights in destroying various personal items during an allegedly illegal search of his home. Finding the dismissal improper, we vacate and remand.
2
On May 14, 1974, the Dallas City Police searched Bodeker's residence, uncovering stolen property and a controlled substance for which Bodeker had no prescription. At the time of this search, Bodeker was on parole after serving 2 years of concurrent 5-year sentences imposed on convictions in Criminal District Court No. 5 of Dallas County, Texas, in 1970 and 1971. Although Bodeker was not prosecuted for possession of the stolen property or the controlled substance, the evidence seized in the May 14, 1974 search was introduced at a subsequent parole revocation hearing. Bodeker's parole was revoked on the basis of the alleged offenses and the evidence seized.
3
Bodeker initially sought habeas relief in both the state and federal courts, the gravamen of the actions being that his Fourth Amendment rights were violated in the May 14, 1974 search of his residence, and that the exclusionary rule forbade the introduction of the evidence seized at his parole revocation hearing. Both the state court and the United States District Court for the Northern District of Texas denied relief. The federal district court determined that since Bodeker had made no claims of police misconduct or harassment, habeas relief from parole revocation was foreclosed. See United States v. Brown, 488 F.2d 94 (5th Cir., 1973). Bodeker filed a notice of appeal to his court but subsequently withdrew it. Thereafter, Bodeker filed the instant action.
4
The lower court dismissed Bodeker's § 1983 suit on the recommendation of the United States Magistrate. The record makes it clear that the Magistrate and the court mistakenly conceived that Bodeker was attacking the arrests and searches leading to his 1970 and 1971 convictions rather than the May 14, 1974 search which resulted in the revocation of parole. The Magistrate treated the complaint as a claim for habeas relief and recommended that the complaint be dismissed (a) because of the previous judgment denying habeas relief and (b) because Bodeker, by entering pleas of guilty in both the 1970 and 1971 state criminal proceedings, had confessed his guilt and waived all nonjurisdictional defenses.
5
Although Bodeker's parole revocation was lawful, his complaint for damages as a result of the allegedly illegal May 14, 1974 search states a cause of action. Compare Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) with Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Accordingly, the dismissal of the complaint was improper. The order appealed from is vacated, and the cause is remanded for further proceedings not inconsistent with this opinion.
6
VACATED AND REMANDED.
|
861 F.2d 720
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William Konrad ELRICH, Petitioner-Appellant,v.Michael J. McCULLION, Registrar Ohio Bureau Motor Vehicles,Respondent- Appellee.
No. 88-3394.
United States Court of Appeals, Sixth Circuit.
Nov. 9, 1988.
1
Before KRUPANSKY and RALPH B. GUY, Jr., Circuit Judges, and RONALD E. MEREDITH, District Judge.*
ORDER
2
This pro se petitioner moves for appointment of counsel and appeals the district court's judgment denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Petitioner was convicted by a Xenia, Ohio Municipal Court of driving while under a suspended license, and driving a vehicle with an expired license plate's sticker. He was sentenced to thirty days in jail, fined $250.00, and assessed court costs. In his habeas petition, he raised the following claims: 1) double jeopardy; 2) ineffective assistance of counsel; 3) illegal search and seizure; 4) the non-disclosure of exculpatory evidence; 5) violation of the privilege against self-incrimination; and 6) arrest without probable cause. The magistrate recommended that the petition be denied finding no merit to petitioner's claims. The district court adopted the magistrate's report over petitioner's timely objections.
4
Upon review, we affirm the district court's judgment. Petitioner did not fairly present his claims to the Ohio state courts. He appealed his conviction to the Greene County, Ohio Court of Appeals, but that appeal was dismissed for want of prosecution. Petitioner is now barred from seeking further review in the Ohio courts because of the doctrine of res judicata. See State v. Perry, 10 Ohio St.2d 175, 180, 226 NE2d 104, 108 (1967). As such, petitioner was required to allege cause and prejudice to excuse his procedural default. See Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). Because petitioner has failed to allege cause and prejudice, the district court was precluded from reviewing his claims.
5
Accordingly, the motion for counsel is denied, and the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.
*
The Honorable Ronald E. Meredith, U.S. District Judge for the Western District of Kentucky, sitting by designation
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TOJHE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76;28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
,,
/
RENDERED: APRIL 27, 2017
. NOT TO BE PUBLISHED
~uprttttt '11nurf nf
2016-SC-000137-DG
FfJN ~ l
COMMONWEALTH OF KENTUCKY
u
[Q) ~ [E of,ah-, )<:;* Qa;JMo.,, bL ·
APPELLANT
ON REVIEW FROM COURT OF APPEALS.
V. CASE NO. 2014-CA-1307cMR
McLEAN CIRCUIT COURT NO. 03-CR-00056
JOHN J. HUGHES APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING
In 2003, John J. Hughes, Jr. ("Hughes") pled guilty to four felonies:
Murder, Tampering with Physical Evidence, and Forgery in the Second Degree
,
(two counts), after bludgeoning his father, John J. Hughes, Sr., to death with a
baseball bat and disposing of the body. In accordance with his guilty plea,
Hughes received an aggregate twenty-year sentence. Over the course of the
next ten years, Hughes filed numerous post-conviction motjons seeking to set
aside his guilty plea, arguing in each motion that he should have received an
evidentiary hearing pursuant to KRS1 439.3401(5) to determine whether he
was exempt from the "violent offender statute," and accordingly, not required to
serve 85% of his sentence before eligibility for parole. KRS 439.3401(5).
exempts from the 85% requirement a person who has been determined by a
1 Kentucky Revised Statutes.
\
court to have been a victim of domestic violence or abuse pursuant to KRS
533.060 with regard to the offenses involving the death of the victim or serious
physical injury to the victim. Hughes claims that he killed his father as a
result of suffering physical and mental abuse at the hands of his father
throughout his life, and that this mitigation evidence should have been
presented at an evidentiary hearing in accordance with KRS 439.3401(5).
Two Court of Appeals panels have reviewed the trial court's denial of
Hughes's successive RCr2 11.42 motions raising the issue of an evidentiary
hearing pursuant to KRS 439.3401(5), and have affirmed. Recently, a third
Court of Appeals panel reversed the trial court's denial of Hughes's CR3 60.02
I
motion, and remanded the case for an evidentiary hearing pursuant to KRS
439.3401 to determine if Hughes qualified for the section (5) exemption.
We granted the Commonwealth's motion for discretionary review to
examine whether the Court of Appeals erred by reversing and remanding this
case for an evidentiary hearing. After thorough review, we conclude that the
Court of Appeals did err, by·engaging in retrospective fact-finding, and by
adjudicating an issue that had already been conclusively resolved.
Accordingly, we reverse the Court of Appeals and reinstate the trial court's
order denying Hughes's CR 60.02 motion.
'
2 Kentucky Rules of Criminal Procedure.
3 Kentucky Rules of Civil Procedure.
2
I. FACTUAL AND PROCEDURAL HISTORY.
In 2003, after bludgeoning his father, John J. Hughes, Sr., to death with
a baseball bat, Hughes wrapped his father's body in plastic and dropped it into
a well on his property. Hughes later confessed to these actions after police
began investigating the disappearance of his father. In his confession, Hughes
told police that his father had sexually abused him as a child, from birth until
he was fourteen, and then mentally abused him his entire adult life.4 Hughes
told police that he had gone to his father's house that day to confront him
about the abuse; he woke his father up from a nap to talk, but his father
became irate and threatened to rape him. Hughes told police that he "lost it,"
grabbed a baseball bat lying near the couch and began beating his father over
the head.
During the investigation, police officers found evidence of pedophilia in
John J. Hughes, Sr.'s possessions, including photographs of young males,
some of which may have been Hughes. In the Uniform Offense Report, the
officers noted that "John J. Hughes, Jr. could have been the victim of sexual
abuse by his father, and killed him due to this fact." The report further states
that officers "advised John Jr. that he might be the victim of sexual abuse."
The Presentence Investigation Report contains Hughes's allegations of sexual
and physical abuse against his father.
4 Hughes was twenty-seven years old when he killed his father, and living with
his girlfriend at that time.
3
Hughes filed, prose, his first RCr 11.42 motion in 2004, alleging that his
trial counsel had rendered ineffective assistance by failing to move for an
evidentiary hearing to determine if Hughes fit the requirements for the
exemption from KRS 439.3401. In his motion, Hughes claimed that he killed
his father as a result of his father having physically and mentally abused him
throughout his life, and argued that his trial counsel was ineffective by failing
'
to investigate the alleged sexual and physical abuse, failing to prepare a
defense and coercing him into pleading guilty. The trial court denied HU:ghes's
· RCr 11.42 motion, holding that the record refuted any claims of ineffective
assistance. Hughes appealed; the Court of Appeals affirmed.s Hughes did not
seek discretionary review of the Court of Appeals' decision.
In 2008, Hughes filed another motion pursuant to RCr 11.42, now
represented by counsel, seeking an evidentiary hearing to determine whether
he qualified .for the KRS 439.3401(5) exemption. The trial court denied his
motion as successive and untimely. Hughes did not appeal·. In 2012, Hughes,
prose, filed again for an evidentiary hearing pursuant to KRS 439.3401(5),
which the trial court denied. Hughes appealed, the Court of Appeals affirmed,
deeming Hughes's motion successive and precluded by the law of the case
doctrine.6 Again, Hughes did not seek discretionary review of the Court of
Appeals' decision.
s Hughes v. Commonwealth, No. 2005-CA-000416"MR, 2006 WL 73738 (Ky.
App. Jan. 13, 2006) (unpublished) (hereinafter Hughes 1).
6 Hughes v. Commonwealth, No. 2013-CA-000068-MR, 2013 WL 5777142 (Ky.
App. Oct. 25, 2013) (unpublished) (hereinafter Hughes Il).
4
In 2014, Hughes filed a motion pursuant to CR 60.02(e)-(i), seeking to
modify his judgment, and asserting that his guilty plea was involuntary, and
therefore invalid, because he was not afforded the opportunity to present
mitigation evidence under KRS 439.3401(5). Hughes also asserted that he had
acted under extreme emotional distress, was actually innocent pursuant to the
"castle doctrine," and that his sentence was disproportionate. 7 The trial court
denied the motion, noting that Hughes had already presented the KRS
439.3401 claims in prior post-conviction motions without success, and that the
issue was, or could have been, raised in other proceedings and thus was not
properly before the court via CR 60.02. Hughes appealed. On appeal, the
Commonwealth asserted two procedural bars: 1) Hughes's 60.02 motion was
not filed in the required reasonable time, and 2) the law of the case doctrine
and principles of res judicata bar re-litigation of this issue.
On February 19, 2016, the instant Court of Appeals panel reversed the
trial court, and remanded this case for an evidentiary heari_ng on Hughes's
claims of ineffective assistance of counsel for allegedly failing to pursue an
exemption pursuant to KRS 439.3401(5), as well as for an evidentiary hearing
7 Hughes claims actual innocence pursuant to the "castle doctrine," but cites
KRS 503.050. KRS 503.055 actually pertains to the "castle doctrine." Jones v.
Commonwealth,. 366 S.W.3d 376, 379 (Ky. 2011). The Court of Appeals found the
"castle doctrine" inapplicable to this case, and therefore reviewed Hughes's claini
pursuant to KRS 503.050(1), which justifies the use of deadly force upon another in
certain circumstances involving self-defense. Since the Court of Appeals reversed and
remanded on the issues of ineffective assistance of counsel, it declined to review
Hughes's claini that his sentence was disproportionate to sentences that other
criminal defendants who were sentenced to lesser included offenses of murder have
received.
5
regarding whether Hughes received ineffective assistance due to his counsel's
failure to argue self-defense on Hughes's behalf.8 The Commonwealth
petitioned this Court for discretionary review, which we granted.
II. ANALYSIS.
Hughes's CR 60.02 motion is procedurally barred, both as untimely and
successive. Hughes has raised the issue of his entitlement to a hearing
pursuant to KRS 439.3401(5) in every post-conviction motion he has filed,
including the instant CR 60.02 motion. Kentucky law does not permit
redundant, successive post-conviction motions or the re-litigation of claims
already conclusively resolved.
Our rules governing review of a trial court's final judgment in a criminal
case are meant to be organized and complete. As this Court has stated,
The structure provided in Kentucky for attacking
the final judgment of a trial court in a criminal case is
not haphazard and overlapping, but is organized and
complete. That structure is set out in the rules related
to direct appeals, in RCr 11.42, and thereafter in CR
60.02.
Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). "CR 60.02· ... is for
relief that is not available by direct appeal and not available under RCr 11.42.
The movant must demonstrate why he is entitled to this special, extraordinary
relief." Id. Where the alleged unconstitutional act could have been raised in an
s Hughes v. Commonwealth, No. 2014-CA-001307-MR, 2016 WL 675952 (Ky.
App. Feb. 19, 2016) (unpublished) (hereinafter Hughes III).
6
earlier proceeding, this court has refused to grant CR 60.02 relief. See id. at
857.
A defendant who is in custody under sentence ... is
required to avail himself of RCr 11.42 as to any ground
of which he is aware, or should be aware, during the
period when the remedy is available to him. Civil Rule
60.02 is not intended merely as an additional
opportunity to relitigate the same issues which could
"reasonably have been presented" by direct appeal or
RCr 11.42 proceedings.
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (citations
omitted). "Indeed, RCr 11.42(3) makes clear that the movant shall, in his RCr
11.42 petition, state all grounds for holding the sentence invalid of which the
movant has knowledge. Thus, final disposition of a mcivant's RCr 11.42 motion
shall conclude all issues which could reasonably have been presented in the
same proceeding." Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014)
(citations omitted). The importance of finality in criminal cases is firmly rooted
in Kentucky jurisprudence.
In his CR 60.02 motion, Hughes attempts to re-litigate his previous RCr
11.42 claims - claims that could have been, and were, already raised. The
current Court of Appeals panel reasoned that
[r]egarding whether Hughes brought these claims
within a reasonable time, we note that Hughes initially
brought this. claim in his first RCr 11.42 motion, which
was timely filed approximately one year after his
judgment became final, and through no fault of his
own, his motion was denied without a hearing and this
Court erred in its decision on appeal. Because of
these procedural problems, we conclude that his
7
current claim was filed within a reasonable time under
the facts of this case.9
However, this reasoning erroneously conflates an alleged error in dispensing
with a prior RCr 11.42 motion with the extraordinary relief of CR 60.02.
Hughes's CR 60.02 motion, filed over ten years after his judgment became
final, cannot be deemed to have been brought within a reasonable time merely
because the current panel of the Court of Appeals disagrees with prior Court of
Appeals' opinions on the merits of Hughes's successive RCr 11.42 claims.
Indeed, the Court of Appeals saw fit to construe Hughes's CR 60.02 motion as
that of an ineffective assistance of counsel motion under RCr 11.42, despite the
passage of over a decade since Hughes's ineffective assistance of counsel claim
was first rejected on appeal in 2006. The instant Court of Appeals panel
ultimately concluded that "Hughes has put forth precisely what the law
requires to have his allegations of ineffective assistance of counsel reviewed via
an evidentiary hearing, as his allegations cannot be refuted on the written
record."10 This reasoning, and the Court's conclusion, is misplaced. As stated
above, "CR 60.02 ... is for relief that is not available by direct appeal and not
available under RCr 11.42." Gross, 648 S.W.2d at 856. Hughes's current CR
60:02 motion is not subject to the same analysis as that of an RCr 11.42
motion.
9 Hughes III, No. 2014-CA-001307-MR at *16.
10 Hughes III, No. 2p14-CA-001307-MR at *~2.
8
The issue of Hughes's entitlement to an evidentiary hearing under KRS
439.3401 is also statutorily barred. Hughes raised the KRS 439.3401
exception in his first post-conviction RCr 11.42 motion, and sought exemption
from the violent offender act. The trial court denied that motion, and Hughes
did not appeal. Pursuant to KRS 439.3402, which governs exemptions from
KRS 439.3401 for victims of domestic violence and abuse, section (7) explicitly
provides that "[o]nly one (1) motion under this section may be filed by the same
offender regarding the same conviction." Hughes raised, and the trial court
and Court of Appeals ruled on, the issue of a KRS 439.3401(5) evidentiary
hearing numerous times. Statutorily, Hughes was not permitted to raise this
issue more than once.
Further, Hughes's CR 60.02 claims are precluded by the law of the case
doctrine.
The law of the case doctrine is an iron rule,
universally recognized, that an opinion or decision of
an appellate court in the same cause is the law of the
case for a subsequent trial or appeal however
erroneous the opinion or decision may have been. The
doctrine is predicated upon the principle of finality.
The law of the case rule is a salutary rule, grounded
on convenience, experience and reason. It has been
often said that it would be intolerable if matters once
litigated and determined finally could be relitigated '
between the same parties, for otherwise litigation
would be interminable and a judgment supposed to
finally settle the rights of the parties would be only a
starting point for new litigation.
Brooks v. Lexington-Fayette Urban Cnty Hous. Auth., 244 S.W.3d 747, 751 (Ky.
App. 2007) (internal citations and quotations omitted).
9
In other words, the law of the case doctrine and res judicata "precludes
an appellate court from reviewing not just prior appellate rulings, but decisions
of the trial court which could have been but were not challenged in a prior
appeal." Brown v. Commonwealth, 313 S.W.3d 577,610 (Ky. 2010). The rules
protect "the important interest litigants have in finality, by guarding against
th('. endless reopening of already decided questions, and the equally important
interest courts have in judicial economy, by preventing the drain on judicial
resources that would result if previous decisions were routinely subject to
reconsideration." Id.
The current Court of Appeals panel imprudently rejected longstanding
precedent in re-opening issues already decided. Indeed, the Court of Appeals
acknowledged it was "departing from the well-worn path of the law of the case
doctrine,"11 but nevertheless determined that this case was a rare one in which
~
applying the law of the case would result in a manifest injustice to Hughes. To
justify its decision, the Court of Appeals cited to Davidson v. Castner-Knott Dry
Goods Co., 202 S.W.3d 597, 602 (Ky. App. 2006), for the notion that even if a
prior ruling is the law of the case, a court "may reexamine an earlier ruling and
rescind it if [the court] has a reasonable conviction that it was wro_ng and it
would not cause undue prejudice to the party that benefited from it." However,
the issue presented in Davidson was whether a trial judge was permitted to
reconsider its previous grant of summary judgment. The holding in Davidson
11 Hughes III, No. 2014-CA-001307-MR at *21.
10
has no bearing on the procedural posture of Hughes's case and is wholly
inapplicable.
Manifest injustice is defined as "'an error in the trial court that is direct,
obvious, and observable, such as a defendant's guilty plea that is involuntary
or that is based on a plea agreement that the prosecution rescinds."' Nichols v.
Commonwealth, 142 S.W.3d 683, 691 (Ky. 2004) (quoting BLACK'S LAW
DICTIONARY 974 (7th ed. 1999)). We disagree with the Court of Appeals that
each prior court "overlooked" information in the record showing that counsel
should have been aware of Hughes's possible mitigation evidence of self-
defense and prior sexual abuse. On the first appeal, the Court of Appeals
engaged in a thorough review of this exact claim, holding that "as to Hughes's
claim that his attorney failed to advise him of the 85% requirement of the
violent offender statute, we find no constitutional violation even if his attorney
failed to so inform him."12 The first Court of Appeals panel further stated that,
with respect to the separate issue of whether Hughes's counsel was ineffective
for failing to move for an evidentiary hearing on the exemption from the violent
offender statute, Hughes did not make the allegation that his attorney knew or
12
Hughes I, 2006 WL 73738, at *2. The Court of Appeals in Hughes !relied on
Turner v. Commonwealth, 647 S.W.2d 500 (Ky. App. 1982), which held that a guilty
plea is not involuntary or invalid because defendant's counsel did not inform the
defendant of parole eligibility guidelines. That holding reflected the state of Kentucky
law in 2006. More recent cases, however, likely would have dictated a different result.
See e.g. Padilla v. Kentucky, 559 U.S .. 356, 130 S.Ct. 1473, 176 L.Ed. 2d 284 (2010)
(holding that counsel's failure to advise criminal defendant of immigration
consequences of guilty plea constituted ineffective assistance of counsel).
11
should have known that Hughes was the victim of domestic violence or abuse
prior to advising him on the guilty plea.ta One judge, however, explicitly
dissented with the Court of Appeals' majority opinion, stating
I fully agree with the majority that the record clearly
refutes Hughes' claims of ineffective assistance of
counsel with respect to his counsel's representation
regarding his guilty pleas. I would, however, remand
this matter to the trial court for an evidentiary hearing
concerning counsel's d.ecision not to pursue, on
Hughes behalf, an exemption from the application of
the violent offender act.14
Clearly, the issue of Hughes's entitlement to a hearing under KRS 439.3401(5)
was presented to, and adjudicated by, the first Court of Appeals panel.
The current Court of Appeals panel therefore erred by embarking on an
-extensive fact-finding mission and re-litigating the issue. The Court of Appeals
also erred by granting relief that Hughes did not seek. Hughes's CR 60.02
motion asked that the court amend his sentence proportionate to Second-
Degree Manslaughter, or Reckless Homicide, or, in the alternative, to find him
to be a victim of domestic violence exempting him from the violent offender
statute and allow him to receive statutory good time credit and an earlier
parofe eligibility date. Hughes's CR 60.02 motion did not request that the
court remand the case for an evidentiary hearing and/ or a new penalty phase
proceeding.
1s Hughes I, 2006 WL 73738, at *2.
14 Hughes I, 2006 WL 73738, at *3.
12
We further find that no manifest injustice occurred which might support
reversal. Hughes pled guilty to four felonies, including murder, and received
an aggregate twenty-year sentence. As noted by the first Court of Appeals
panel, it would seem that Hughes's counsel was actually highly effective since
he negotiated a total sentence of twenty years for all four felonies. is Thus, we
are unable to say that Hughes's sentence resulted in manifest injustice.
III. CONCLUSION.
For the foregoing reasons, we reverse the Court of Appeals. Hughes's
allegations of ineffective assistance of counsel were repeatedly and properly
rejected by the trial court and two prior panels of the Court of Appeals and are
procedurally barred from being re-litigated. Furthermore, no manifest injustice
resulted from the denial of Hughes's request for an evidentiary hearing
regarding a possible exemption from the violent offender act that would
warrant a dispensation from the law of the case doctrine.
All sitting. All concur.
15
It appears that in a separate case, 2003-CR-55, Hughes was charged with
Manufacturing Methamphetamine and Knowingly Possessing Anhydrous Ammonia
with Apparent Intent to Manufacture Methamphetamine. Hughes's trial counsel
apparently succeeded in negotiating an aggregate twenty-year sentence for him for
these charges in conjunction with the four felonies discussed herein.
13
COUNSEL FOR APPELLANT:
Andy Beshear
Attorney General of Kentucky
Kenneth Wayne Riggs
Assistant Attorney General
COUNSEL FOR APPELLEE:
.Heather Hogsdon
Assistant Public Advocate
Department of Advocacy
14
|
447 Pa. 268 (1972)
McAndrews
v.
Spencer et ux., Appellants.
Supreme Court of Pennsylvania.
Argued January 18, 1972.
April 20, 1972.
Before JONES, C.J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
*269 Anthony J. Popeck, with him Casey, Carey & Mazzoni, for appellants.
Thomas J. Jones, for appellees.
OPINION BY MR. JUSTICE O'BRIEN, April 20, 1972:
Appellants and appellees are adjoining neighbors in the Township of Newton, Lackawanna County, who derive their sources of title to their respective parcels of real estate from a common grantor, Oscar D. Coon. Appellants, Kenneth and Inez Spencer, acquired their deed dated in 1965, but recorded July 27, 1967. The land by a deed dated September 11, 1963, and another older appellees, Robert McAndrews, Sr., and his wife, obtained their parcels by deed dated April 12, 1965. Robert McAndrews, Jr., and his wife acquired their seven parcels by deeds dated April 27, 1965, April 6, 1966, and April 22, 1967. The deed of Robert McAndrews, Sr., the April 6, 1966, deed of Robert McAndrews, Jr., and the deeds of appellants all refer to a certain forty-foot road designated and located on a plot of lots by Oscar D. Coon as a boundary between the Spencers' parcels and part of the McAndrews' parcels. A map showing the proposed forty-foot road was recorded in the office of the Recorder of Deeds of Lackawanna County on March 11, 1970.
However, the road was never opened to the public, nor was it ever dedicated to the Township. According to appellants, a portion of the area was used by them as a driveway and the remainder of the area designated as a proposed road was "voluntarily beautified" by them.
*270 In 1970, when the McAndrews began to develop their lands commercially, they began to use the unopened road, destroying the shrubs and landscaping. On July 23, 1970, appellants retaliated by returning to Mr. Coon and purchasing the acreage originally designated as the proposed forty-foot road. They obstructed the road by placing a wire cable across its width and length and posting a sign marked "private property" thereon.
This, not unexpectedly, provoked a lawsuit. Appellees filed a complaint in equity, seeking a decree granting them the right to an easement over the area. The chancellor found for appellees and after the dismissal of the exceptions of the appellants and the entry of a final decree, appellants appealed.
Both parties rely on the Superior Court case of Taylor v. Gross, 195 Pa. Superior Ct. 225, 171 A. 2d 613 (1961), to support their respective positions. Appellants emphasize the following portion of the opinion in Taylor, at page 232: "Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction: Fitzell v. Phila, 211 Pa. 1, 5, 60 A. 2d 323."
This passage is an accurate statement of the general law of implied easements. In the instant case, we are dealing with a more specific application of the rule, i.e., the implication of an easement when a roadway, not dedicated as a public use, is specified as a boundary of a parcel of real estate. In such cases, another portion of Taylor sums up the law on the question: "where descriptions in a deed refer to a driveway as a boundary, which is not a highway or dedicated to public use, the grantee does not take title in fee to the center of *271 it but by implication acquires an easement or right of way over the lands: Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1, 4; Vinso v. Mingo, 162 Pa. Superior Ct. 285, 288, 57 A. 2d 583; Hoover v. Frickanisce, 169 Pa. Superior Ct. 443, 446, 82 A. 2d 570."
The easement is created by implication by application of the rule. See also Jones v. Sedwick, 383 Pa. 120, 117 A. 2d 709 (1955). The allegedly contrary intent of the grantor, as allegedly shown by his subsequent grant of a fee to the roadway to the appellants makes no difference. Appellees are entitled to their easement.
Decree affirmed. Costs to be borne by appellants.
|
In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2109
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID A. COMBS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois, Benton Division.
No. 98 CR 40044--J. Phil Gilbert, Chief Judge.
Argued November 30, 1999--Decided July 25, 2000
Before MANION, KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. David A. Combs was
charged with possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. sec.
841(a)(1). The district court granted a mistrial
sua sponte during Combs’ first trial, when the
court discovered that his attorney had possibly
represented the prosecution’s key witness against
him. With new counsel for both Combs and the
witness, a second trial commenced. A jury
ultimately convicted Combs, and the court
sentenced him to 192 months of imprisonment.
Combs appeals, contending that his second trial
was held in violation of the double jeopardy
clause of the Fifth Amendment, that the dismissal
of his original counsel violated his Sixth
Amendment right to counsel, that the court erred
in granting the mistrial sua sponte, that the
court erred in failing to suppress his
confession, and that the government failed to
produce sufficient evidence to allow a rational
jury to find him guilty beyond a reasonable
doubt. We affirm.
I.
On March 11, 1998, the California Airport
Authority Drug Task Force intercepted a
suspicious package that had been mailed by "Bill
Combs" from a Mail Boxes Etc. store in California
to Shawn Temelcoff in Mount Vernon, Illinois.
After obtaining a search warrant for the package,
the Task Force officers discovered it contained
a large quantity of methamphetamine. The Task
Force contacted the Mount Vernon police
department, and arranged a controlled delivery of
the package to Temelcoff. Temelcoff accepted the
package, and the Mount Vernon police then
executed an anticipatory search warrant on her
home. They found the package unopened in
Temelcoff’s bedroom. The officers interviewed
Temelcoff and learned that she did not know what
was in the package, but that it had been mailed
to her by David Combs. She was involved in a
romantic relationship with Combs, who had called
her recently to tell her that a package was on
the way. Combs asked that she hold the package
until he arrived, and directed her not to open
it. Temelcoff and Combs met regularly on the
night of the full moon, and Combs told Temelcoff
he would be arriving on the evening of the next
full moon to pick up the package. Temelcoff
relayed all of this to the police, who arranged
to be present for Combs’ next moonlit visit.
On the evening of March 12, 1998, officers
hidden in Temelcoff’s home heard Combs arrive and
ask Temelcoff for the package. Combs told
Temelcoff he had been worried sick about sending
it. As he left Temelcoff’s home with the package
in his hands, Combs was arrested by federal drug
enforcement officers. He was transported to the
Mount Vernon Police Department where, prior to
questioning him, Officers Randall Nodolski read
Combs his rights, using a Miranda waiver form.
When Officer Nodolski informed Combs that
anything he said could be used against him, Combs
replied that if the officers wanted to use his
statement against him, Combs might need a lawyer.
In response to this equivocal statement, Officer
Nodolski again read the form to Combs and asked
him if he understood his rights. Combs indicated
that he understood his rights and wanted to speak
to the officers "off the record." Thereafter he
made an incriminating statement to the officers
regarding his involvement with the package
containing methamphetamine. As he made the
statement, one of the officers took notes of
everything Combs said. At no point in the
interrogation did Combs explicitly ask for an
attorney. At no point did the officers agree that
the statement would be off the record.
Combs’ first trial commenced on September 28,
1998. On the first morning of trial, after the
first two government witnesses testified, the
court learned from the government that Combs’
attorney, James Proffitt, had involved himself in
the defense of Shawn Temelcoff, who, not
surprisingly, turned out to be one of the
government’s key witnesses. Temelcoff had not
been charged with anything, but after Proffitt
interviewed her about her potential testimony, he
procured a lawyer for her. Combs’ mother paid
Temelcoff’s legal fees, and the payments were
arranged by and funneled through Proffitt. Combs’
mother was paying her son’s legal fees as well,
and the court became concerned that the same
source was paying the legal fees for both the
defendant and the key witness against him. The
court, on learning these facts, appointed a new
attorney for Temelcoff. The next day, the court
addressed Combs and Proffitt directly in open
court. At that time, Proffitt admitted that he
advised Temelcoff that she needed an attorney and
that he offered to arrange for Combs’ mother to
cover the cost. He introduced an attorney, Monroe
McWard, to Temelcoff, arranging a meeting at a
restaurant for them. McWard subsequently sent
Proffitt the retainer agreement that Temelcoff
signed. Proffitt deposited a check from Combs’
mother into his own business account and then
wrote a check to McWard from that same account.
Proffitt admitted that he knew that at some
point, Combs’ interests would conflict with
Temelcoff’s and that Temelcoff would take the
witness stand. He related to the court that when
he first met with Temelcoff, he told her that
"she had to tell the truth no matter what." Tr.
at 183. He admitted he spoke to her at the lunch
break on the first day of the trial, and told her
again that "she had to tell the truth. No matter
what she might have wanted, no matter how they
wanted things to come out, it didn’t make any
difference. She must tell the truth." Tr. at 183.
Proffitt told the court that he believed
Temelcoff was so intimidated and frightened at
that point that she would say whatever she
thought she had to say to save her neck. Proffitt
thought under the circumstances that Temelcoff
should not be permitted to testify.
Based on these admissions, the court explained
to Combs the potential conflict presented by
Proffitt’s involvement with Temelcoff and McWard.
The district court noted that a mistrial would be
necessary if Combs declined to waive any
conflicts. After consulting with Proffitt, Combs
refused to waive the conflict, stating "I don’t
want to waive nothing, but I do want him to
represent me," insisting that Proffitt remain his
lawyer./1 Tr. at 192. The court then declared a
mistrial, dismissed Proffitt as counsel for
Combs, and rescheduled the trial.
Combs moved to dismiss the indictment,
contending that a retrial was barred by the
double jeopardy clause of the Fifth Amendment.
The district court found that Proffitt involved
himself in Temelcoff’s legal assistance by
recommending and then procuring legal
representation for her, and by arranging for
payment of Temelcoff’s legal fees by Combs’
mother. Proffitt’s conduct in dealing with this
adverse witness would have possibly violated
several rules of professional conduct, according
to the district court, including Illinois Rules
of Professional Conduct 1.2, 1.7, 3.4 and 4.3.
The court found that considering the
circumstances as a whole, Proffitt’s conduct
compromised Combs’ right to conflict-free
representation and impermissibly tainted any
trial outcome. In particular, the court found
that Proffitt had given legal advice to
Temelcoff. Because of the nature and level of
Proffitt’s involvement with Temelcoff, the court
was concerned that Proffitt may have been
ethically constrained in his cross-examination of
Temelcoff at Combs’ trial. The court also
determined that Proffitt’s conduct called into
question the integrity of the court, and gave
rise to a possible attack on the basic fairness
of the proceeding. Specifically, the court was
concerned that by allowing Combs to go forward
with Proffitt as his attorney, Combs would have
a built-in appealable issue about his Sixth
Amendment right to conflict-free counsel. See
January 25, 1999 Order; Tr. at 164-196.
The court found that Combs refused to waive
potential conflicts, even though the court had
admonished him that his refusal to waive the
conflicts would result in a mistrial. The court
found that Combs did not object to the mistrial,
either before or after the court declared the
mistrial, and he therefore impliedly consented to
the court’s ruling. The district court framed the
issues for analyzing Comb’s double jeopardy claim
as threefold: whether the mistrial was proper,
whether Combs objected, and if he did object,
whether the mistrial declaration was based on
manifest necessity. The court held that the
mistrial was proper because Proffitt’s conduct
tainted the judicial proceedings in a way that
undermined both the public’s and the defendant’s
interest in a fair trial. This taint was caused
by Proffitt’s misconduct, and the taint affected
the proceedings to such an extent that it
outweighed Combs’ interest in having the counsel
of his choice and in having the impaneled jury
decide his case. The court found further that had
it failed to declare a mistrial, Combs would have
an opportunity on appeal to have his conviction
reversed because of his counsel’s conflict of
interest and misconduct. Moreover, Combs
impliedly consented to the mistrial by failing to
object when given the opportunity, and thus the
mistrial was appropriate. The district court
acknowledged that had Combs objected, retrial
would have been prohibited by the double jeopardy
clause unless there was a manifest necessity for
declaring the mistrial. The district court found
that even if Combs had objected, the mistrial was
manifestly necessary because of the taint in the
proceedings that undermined the ends of justice
and because Combs would have had an opportunity
on appeal to challenge his conviction on the
ground that his attorney was under a conflict of
interest. Therefore, the district court denied
the motion to dismiss the indictment, and Combs
proceeded to the second trial. That second jury
convicted Combs and the district court sentenced
him to 192 months of imprisonment. Combs appeals.
II.
Combs raises four challenges to his conviction.
First, he argues that his second trial violated
the double jeopardy clause of the Fifth Amendment
because the mistrial was not manifestly
necessary. Second, he contends that the district
court’s dismissal of his trial counsel violated
his Sixth Amendment right to the counsel of his
choice because the conflict of interest noted by
the district court was too remote or minimal to
justify the dismissal. Third, he claims that his
confession should have been suppressed because he
made incriminating statements to the police
before he was given his Miranda rights. Finally,
he complains that the evidence at trial was
insufficient to convict him of possession with
intent to distribute methamphetamine because the
government lacked evidence that he distributed or
intended to distribute the methamphetamine in his
possession.
A.
The double jeopardy clause bars retrial unless
the district court’s mistrial declaration was
occasioned by manifest necessity or consented to
by the defendant. Camden v. Circuit Court of the
Second Judicial Circuit, Crawford County,
Illinois, 892 F.2d 610, 614 (7th Cir. 1989),
cert. denied, 495 U.S. 921 (1990). We turn first
to the question of whether Combs consented to a
mistrial. Either express or implied consent will
suffice to overcome the bar to retrial so long as
there is no governmental or judicial conduct
intended to goad the defendant into assenting.
Camden, 892 F.2d at 614. Here, the court
addressed Combs directly after determining that
Proffitt labored under the appearance of a
conflict if not an actual conflict of interest.
The court gave Combs an opportunity to consult
with Proffitt, and then asked if he would waive
his right to conflict-free representation. Combs
refused to waive that right, and told the court
he nonetheless wished to have Proffitt represent
him. The court then declared a mistrial and
dismissed Proffitt. Neither Combs nor his
attorney objected to the mistrial declaration.
Combs asked for clarification of what his
attorney had done wrong, and the court explained
again that Proffitt had given legal counsel to
Temelcoff, the government’s key witness against
him, and that this representation of the main
witness against Combs created a conflict of
interest. The court clarified that because of
this conflict, the court would not allow Proffitt
to continue to represent Combs, and that without
a waiver, the court intended to start a new trial
in two to three months with new counsel for
Combs. The court asked Combs if he understood,
and Combs indicated that he did. Proffitt made no
statement other than to inform the court that
Combs could find new counsel "within a couple of
weeks." Neither Proffitt nor Combs indicated any
disagreement with the declaration of a mistrial.
Nonetheless, we are reluctant to construe this
silence as consent to a mistrial under these
unusual circumstances. At the time when he could
have registered an objection to the mistrial,
Combs was represented by an attorney who had
engaged in the conduct giving rise to the
mistrial. The district court found that it could
not proceed unless Combs waived his right to
conflict-free representation, and Combs refused
to waive that right. We cannot construe his
silence against him under those circumstances.
Furthermore, Combs stated emphatically that he
did not want to waive any of his rights, and this
statement could serve as a layman’s objection to
the mistrial. Nor may we construe Proffitt’s
silence as consent to the mistrial because
Proffitt quite possibly labored under a conflict
of interest and had created the very situation
giving rise to the mistrial. Finally, both
Proffitt and Combs vigorously objected to
Proffitt’s dismissal, and once Proffitt was
dismissed, they had no viable objection to the
mistrial itself. Obviously, the trial could not
go forward until Combs secured a new attorney.
Under these circumstances, we will construe
Combs’ objection to the dismissal of his attorney
as his objection to the mistrial declaration.
We turn then to manifest necessity. We judge
manifest necessity by examining the reason for
the mistrial itself, and not the event that
triggered the mistrial. United States v.
Buljubasic, 808 F.2d 1260, 1265 (7th Cir. 1987),
cert. denied, 484 U.S. 815 (1987). In this case,
for example, it was obviously not manifestly
necessary for Proffitt to represent both the
defendant and the star witness against him. The
question is whether the mistrial itself was
manifestly necessary once the court determined
that Proffitt engaged in that questionable
conduct. Our discussion of consent lays out the
Catch 22 in which the district court found
itself. Because of Proffitt’s conduct, the
validity of the verdict would have been in
question whether or not the court allowed
Proffitt to continue his representation of Combs.
If the court dismissed Proffitt, Combs could
complain that he was denied the counsel of his
choosing. If the court accepted Combs’ waiver of
his right to conflict-free representation, Combs
could complain that the waiver was invalid and
his counsel was ineffective. The court was also
concerned about the fact that Combs’ mother was
funding legal representation for her son and for
the star witness against him. Adding to the
court’s apprehension was the fear that Proffitt
would be ethically constrained in cross-examining
Temelcoff because he had previously given her
legal advice. As the district court aptly noted,
"[t]he situation, you know, smells to high
heaven." Tr. at 189.
Under the manifest necessity standard, a court
may declare a mistrial only if a "scrupulous
exercise of judicial discretion leads to the
conclusion that the ends of public justice would
not be served by a continuation of the
proceedings." Camden, 892 F.2d at 614 (quoting
United States v. Jorn, 400 U.S. 470, 485 (1971)).
The Supreme Court has described the "ends of
public justice" as "the public’s interest in fair
trials designed to end in just judgments."
Illinois v. Somerville, 410 U.S. 458, 463 (1973)
(quoting Wade v. Hunter, 336 U.S. 684, 689
(1949)). Whether this standard can be met must be
determined on a case-by-case basis. Camden, 892
F.2d at 614. Here the district court found that
the proceedings had been tainted by the conduct
of the defendant’s lawyer. The court concluded
that this misconduct opened the door to a
reversal on appeal under either of the two
theories described above.
A trial judge properly exercises his discretion
to declare a mistrial if . . . a verdict of
conviction could be reached but would have to be
reversed on appeal due to an obvious procedural
error in the trial. If an error would make
reversal on appeal a certainty, it would not
serve the "the ends of public justice" to require
that the Government proceed with its proof when,
if it succeeded before the jury, it would
automatically be stripped of that success by an
appellate court.
Somerville, 410 U.S. at 464. We agree with the
district court’s assessment that this was such a
case. Once Combs refused to waive his right to
conflict-free representation, it served no
purpose to proceed to a verdict that would surely
be overturned on appeal. United States v.
Cyphers, 553 F.2d 1064, 1068 (7th Cir. 1977),
cert. denied, 434 U.S. 843 (1977) (even where a
reversal was not a certainty, the defendant’s
ability to present a sufficiently meritorious
claim for reversal may support a trial judge’s
decision that the ends of public justice would be
better served by a mistrial). Finally, even
though Combs did not request the mistrial and did
not consent to it, "the mistrial was surely
ordained for his benefit. He can hardly complain
that he was ’penalized’ by the district court’s
vigilant regard for his right to a fair trial."
Cyphers, 553 F.2d at 1068./2 Therefore, we
affirm the district court’s judgment that the
mistrial was occasioned by manifest necessity.
The retrial was thus not barred by the double
jeopardy clause.
B.
As the district court predicted, Combs’ next
challenge is based on his Sixth Amendment right
to the counsel of his choosing, a right he claims
was violated when the court dismissed Proffitt
and required him to proceed with new counsel. We
review for abuse of discretion the district
court’s decision to remove Proffitt from his
representation of Combs. United States v. Spears,
965 F.2d 262, 275 (7th Cir. 1992). Although every
defendant has a right to the attorney of his
choosing, that right is not absolute. United
States v. Vasquez, 966 F.2d 254, 261 (7th Cir.
1992). The Sixth Amendment also entitles
defendants to representation by an attorney
unfettered by any conflict of interest. United
States v. Lowry, 971 F.2d 55, 59 (7th Cir. 1992).
Even when a defendant is willing to waive a
conflict of interest, a court has an independent
duty to balance the right to counsel of choice
with the broader interests of judicial integrity.
Vasquez, 966 F.2d at 261. The court is required
to take action to protect the defendant’s right
to effective assistance of counsel unless, after
inquiry, the court believes that a conflict of
interest is unlikely to arise. Id.; Lowry, 971
F.2d at 59 (Sixth Amendment right to counsel of
defendant’s choosing and right to conflict-free
representation may at times clash with each
other).
This situation arises most often in the context
of a single attorney representing co-defendants,
but we think the principles are equally
applicable here where Temelcoff was the primary
witness against Combs, and was herself implicated
by having accepted delivery of the package of
drugs at her home. Lowry, 971 F.2d at 59-60.
Generally, a defendant may not insist on the
counsel of an attorney who has a previous or
ongoing relationship with an opposing party.
Wheat v. United States, 486 U.S. 153, 159 (1988).
Joint representation is suspect because ethical
constraints may prevent the attorney from
vigorous defense of the client. Wheat, 486 U.S.
at 160. For example, a conflict may prevent an
attorney from challenging admission of evidence
prejudicial to one client but perhaps favorable
to another. The conflict may hamper the attorney
at sentencing from arguing that one client is
less culpable than another. Wheat, 486 U.S. at
160. Or, as the court feared in Combs’ case, a
conflict may prevent an attorney from vigorously
cross-examining one client to the detriment of
another. The court must determine this potential
for conflicts not with the luxury of hindsight
but in the murkier context of the pre-trial
proceedings, or, as happened in this case, during
the trial itself. See Wheat, 486 U.S. at 162-63.
Here the district court carefully detailed the
potential for a conflict, and the taint in the
fairness of proceedings occasioned by Proffitt’s
conduct. The court found that Proffitt advised
Temelcoff to hire an attorney, that he located an
attorney for her and that he arranged to have the
defendant’s mother pay for that attorney.
Moreover, the court found that the fees to pay
Temelcoff’s attorney were funneled through
Proffitt, and that Proffitt advised Temelcoff to
testify truthfully at trial. The court
anticipated from the opening statements that
Combs’ defense was going to be that the drugs
belonged to Temelcoff, and that Temelcoff was
going to testify that the drugs belonged to
Combs. In combination with the fact that Combs’
mother paid for both her son’s lawyer and the
lawyer representing the chief witness against
him, the court found that the appearance of a
conflict if not an actual conflict clouded
Proffitt’s representation of Combs. The court
carefully explained the nature of the conflict to
Combs in open court, and Combs refused to waive
his right to conflict-free representation.
Combs cannot have it both ways. He now claims
there was no conflict sufficient to deprive him
of the attorney of his choice, and yet he refused
to waive any conflict when given the opportunity.
We cannot say that the district court abused its
discretion in finding that it could not allow
Proffitt to continue as Combs’ attorney under the
circumstances. Combs wanted an unconflicted
attorney and also wanted Proffitt to be that
attorney. Because of Proffitt’s conduct, that was
impossible. When Combs refused to waive the
conflict, the court had no choice but to appoint
new counsel for Combs and proceed to a second
trial. In order that the judgment remain intact
on appeal, the district court enforced Combs’
right to effective assistance of counsel. See
Wheat, 486 U.S. at 161 (district courts may be
whip-sawed by assertions of error no matter which
way they rule in the situation of multiple
representations). The district court here acted
scrupulously in its protections of the
defendant’s rights. It did not abuse its
discretion in doing so.
C.
We next consider whether the district court
erred when it refused to suppress Combs’
confession on the grounds that the police
officers did not inform him of his Miranda rights
before obtaining his statement. In the district
court, Combs claimed that his statement was
involuntary because the police officers continued
to question him after he requested an attorney.
The district court held a hearing on that claim
and concluded that Combs never unequivocally
asked for an attorney and that the officers’
continued questioning of him under the
circumstances was reasonable. In the course of
its order on that matter, the court stated that
"at some point during his custodial
interrogation, Combs was given Miranda warnings."
August 5, 1998 Memorandum and Order, at 7. On the
basis of that statement, Combs now argues that
there was no clear finding by the district court
as to when Combs was read his rights, and thus no
clear finding that he waived those rights before
he gave an incriminating statement.
Combs did not raise this issue of the timing of
the Miranda warnings in his motion to suppress
before the district court. We therefore review
his claim for plain error. Fed. R. Crim. Pro.
52(b). Implicit in the district court’s finding
that Combs waived his rights is a finding that
the officers advised Combs of his rights before
interrogating him. The district court’s Order
would be nonsensical if the district court
believed Combs’ testimony that the officers did
not advise him of his rights until after
questioning had begun and after Combs had claimed
ownership of the package of methamphetamine.
After all, as the district court correctly noted
in its Order, statements gathered without Miranda
warnings are irrebuttably presumed to be
involuntary and thus inadmissable. See August 5,
1998 Memorandum and Order, at 4; Oregon v.
Elstad, 470 U.S. 298, 306-07 (1985). Yet the
district court found that Combs’ statements were
voluntary because he received the Miranda
warnings and continued to talk to the police
after indicating an understanding of his rights.
We review de novo the district court’s finding
that Combs’ Miranda waiver was voluntary, but our
review of the district court’s findings of
historical fact is deferential. United States v.
Westbrook, 125 F.3d 996, 1001 (7th Cir. 1997),
cert. denied, 522 U.S. 1036 (1997). We will not
reverse the district court’s findings of
historical fact absent clear error. Id. The only
error that Combs claims is that the court did not
make a specific finding that the warnings were
given before any interrogation occurred. Because
such a finding was implicit in the district
court’s order, and readily apparent from a
careful reading of that order, we find no error.
D.
We turn finally to Combs’ claim that the
evidence was insufficient to prove that he had
the intent to distribute the methamphetamine. He
does not challenge the sufficiency of proof on
the possession prong of the statute. Combs faces
a formidable hurdle to successfully challenge the
sufficiency of the evidence. See United States v.
Van Dreel, 155 F.3d 902, 906 (7th Cir. 1998).
Viewing the evidence in the light most favorable
to the government, we reverse only if the record
contains no evidence from which the jury could
find guilt beyond a reasonable doubt. Id. Combs
acknowledged ownership of a package containing
616 grams of methamphetamine. A jury may infer
intent to distribute when the amount found in the
defendant’s possession greatly exceeds the amount
normally possessed for personal use. United
States v. Velasquez, 67 F.3d 650, 653 (7th Cir.
1995). Combs could not seriously argue that he
intended to personally consume more than a pound
of methamphetamine, or that a jury could not
infer intent to distribute from that ponderous
amount. The evidence was sufficient for the jury
to infer that Combs intended to distribute the
methamphetamine.
III.
For the reasons stated above, we therefore
affirm the judgment of the district court.
AFFIRMED.
/1 The court asked for clarification and Combs
stated, "I don’t want to waive none of my
rights." Tr. at 193. This declaration is relevant
to the government’s claim that Combs failed to
object to the mistrial.
/2 Obviously, we would reach a different result if
the misconduct had been committed by the
prosecutor rather than Combs’ own counsel. When
calculated prosecutorial misconduct necessitates
the mistrial, the double jeopardy clause may bar
retrial of the defendant. Cyphers, 553 F.2d at
1068 n.1.
|
195 Ga. App. 211 (1990)
393 S.E.2d 57
LITTLE
v.
COX ENTERPRISES, INC.
A89A2343.
Court of Appeals of Georgia.
Decided March 15, 1990.
Rehearing Denied March 28, 1990.
Charles E. Muskett, for appellant.
Savell & Williams, Judy F. Aust, for appellee.
COOPER, Judge.
Appellant appeals from the judgment of the superior court reversing *212 the award of the State Board of Workers' Compensation.
Appellant, who injured his back on November 9, 1986 during the course of his employment as a deliveryman for the appellee newspaper, was hospitalized and given certain prescription medications. He received temporary total disability benefits until he returned to work on November 25, 1986. He reinjured his back on February 19, 1987 while lifting heavy bales of paper. On that same evening, he noticed a small amount of blood in his mouth which, when examined by his wife, did not appear to be coming from his teeth or gums. On March 28, 1987 appellant began to cough up blood and, on March 31, 1987 he was readmitted to South Fulton Hospital for a lumbar laminectomy. At that time appellant began hemorrhaging profusely and required massive blood transfusions. His back surgery had to be postponed until the bleeding was controlled. Subsequent to his recovery from the back surgery appellant was required to be hospitalized four times for treatment of upper gastrointestinal bleeding and esophageal varices "suggestive of" cirrhosis of the liver.
Appellee refused to pay benefits for any treatment related to the hemorrhaging, contending that it was caused by cirrhosis of the liver brought about by appellant's heavy drinking and was not work related. The matter was heard by the ALJ, who issued an award in appellant's favor finding that: "there was a causal relationship between the subsequent bleeding of the esophageal varices as a result of the claimant's being given anti-inflammatory and anti-steroidal drugs at South Fulton Hospital when undergoing treatment for his back injury, including surgery. The resulting gastritis and the inflammation was the basic underlying cause for the bleeding. In addition, the stress of heavy lifting immediately prior to the back injury and surgery could have predisposed the varices to bleed by increasing the internal pressure within those organs." The full board affirmed the award of the ALJ; but on appeal to the superior court, the award was reversed.
The ALJ and the full board are factfinders and have the exclusive prerogative of weighing evidence, and determining the credibility of witnesses. Horizon Indus. v. Carter, 188 Ga. App. 194, 196 (372 SE2d 301) (1988). Furthermore, "`[i]t is axiomatic that any finding of fact by the board, if supported by any evidence, is conclusive and binding upon the superior court and this court. (Cits.)'" Henry Gen. Hosp. v. Stephens, 189 Ga. App. 619 (1) (376 SE2d 705) (1988).
Our review of the record discloses that the evidence was conflicting as to the cause of appellant's bleeding. One of his treating doctors stated that in his opinion the repetitive loading and unloading of the newspaper bales from the truck could have caused a progressive weakening of the venus walls of the esophageal varices which would increase their chances of rupturing; and that the medications given to *213 appellant could facilitate a bleeding tendency if taken within two weeks prior to the bleeding. Indeed, all of the doctors involved in treating appellant concurred with the fact that the medications he was taking could have aggravated any preexisting cirrhosis of the liver, and another doctor agreed that the bleeding also could have resulted from prolonged lifting in addition to the medicine. One of the attending physicians even ventured the opinion that the bleeding from the varices veins could have been induced by the procedure he used in examining appellant's throat. The only evidence to suggest that appellant had suffered alcohol related problems with his liver prior to his back injury was three arrests for DUI and the testimony of his boss that he and appellant had drunk too much together on occasion and discussed their drinking "problem." However, there was no evidence of any treatment of appellant for alcohol related behavior or disease by any physician or facility, nor was there any evidence that appellant had a past history of any unusual bleeding or hemorrhaging. In short, the evidence presented in regard to whether there was a proximate causal connection between appellant's work activities and the aggravation of his preexisting condition was in dispute and contradictory. There being some evidence to support the findings of the ALJ and the full board in this case, the court erred in reversing the award.
Judgment reversed. Deen, P. J., and Birdsong, J., concur.
|
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00019-CV
Appellants, Dr. Don Brantley, Belinda Castillo, Dr. Corinne Alvarez-Sanders and
Patricia Logterman// Cross-Appellants, Texas Youth Commission; Cherrie Townsend
in her official capacity as Executive Director
v.
Appellees, Texas Youth Commission; Cherrie Townsend in her official capacity as
Executive Director// Cross-Appellees, Dr. Don Brantley, Belinda Castillo,
Dr. Corinne Alvarez-Sanders and Patricia Logterman
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-09-001812, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
O P I N I O N
After allegations surfaced that employees of the Texas Youth Commission (TYC)
had sexually abused youths housed in that agency's facilities, the Eightieth Texas Legislature
enacted Senate Bill 103, which amended a number of statutory provisions governing that agency. (1)
In section 37 of S.B. 103, the Legislature changed the basis of employment at TYC, which prior
statutes had previously made for-cause, to at-will. (2) This appeal concerns attempts by a group of
present and former TYC employees to challenge the constitutionality of that change.
Four current or former TYC employees who had begun working at the agency
before section 37 took effect--two of whom allegedly resigned under threat of termination before
section 37 took effect, one of whom was terminated after section 37 took effect, and one of whom
continues to work for the agency (collectively, Plaintiffs)--sued TYC and its executive director
seeking declaratory, injunctive, and monetary relief based principally on the allegation that
section 37 unconstitutionally deprived them of property rights in their employment. TYC and its
executive director (collectively, the TYC Defendants) interposed a plea to the jurisdiction, which the
district court granted in part and denied in part. Both Plaintiffs and the TYC Defendants appeal the
district court's order. We will affirm the district court's order in part and reverse in part.
STANDARD OF REVIEW A plea to the jurisdiction challenges a trial court's authority to decide the
subject matter of a specific cause of action. See Texas Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225-26 (Tex. 2004). Analysis of whether this authority exists begins with the
plaintiff's live pleadings. Id. at 226. The plaintiff has the initial burden of alleging facts that
affirmatively demonstrate the trial court's jurisdiction to hear the cause. Id. (citing Texas Ass'n of
Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). Whether the plaintiff met this
burden is a question of law that we review de novo. Id. We construe the pleadings liberally, taking
them as true, and look to the pleader's intent. Id.; Texas Logos, L.P. v. Brinkmeyer, 254 S.W.3d 644,
659 (Tex. App.--Austin 2008, no pet.). Mere unsupported legal conclusions are insufficient. See
Creedmoor-Maha Water Supply Corp. v. Texas Comm'n on Envtl. Quality, 307 S.W.3d 505, 515-16
& nn.7 & 8 (Tex. App.--Austin 2010, no pet.). If the pleadings fail to allege sufficient facts to
affirmatively demonstrate the trial court's jurisdiction but also fail to affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should
be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-27. If, on the other hand, the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiff an opportunity to amend. Id. at 227.
We must also consider evidence the parties presented below that is relevant to the
jurisdictional issues, Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000), including
evidence that a party has presented to negate the existence of facts alleged in the plaintiff's pleading.
See Miranda, 133 S.W.3d at 227; see also Combs v. Entertainment Publ'n, Inc., 292 S.W.3d 712,
719 (Tex. App.--Austin 2009, no pet.) (summarizing different standards governing evidentiary
challenges to the existence of pleaded jurisdictional facts where such facts implicate both jurisdiction
and the merits versus where they implicate only jurisdiction). Our ultimate inquiry is whether
the plaintiff's pleaded and un-negated facts, taken as true and liberally construed with an eye to
the pleader's intent, would affirmatively demonstrate a claim or claims within the trial court's
subject-matter jurisdiction. See Miranda, 133 S.W.3d at 226; Creedmoor-Maha, 307 S.W.3d at 513,
516 n.8. This is a question of law that we review de novo. See Miranda, 133 S.W.3d at 226;
Creedmoor-Maha, 307 S.W.3d at 513, 516 n.8.
STATUTORY AND PROCEDURAL CONTEXT
Before turning to the record in this appeal, it is helpful first to briefly review the
changes to the statute and TYC procedures that provide the context for Plaintiffs' claims and
the parties' appellate issues. Prior to being amended by section 37 of S.B. 103, section 61.035 of
the human resources code provided that the TYC "may remove any employee for cause." The
United States Supreme Court has held that state laws conferring to public employees more than
a unilateral expectation of continued employment create a property right in that employment, such
that an employee must be afforded procedural due process before being involuntarily terminated,
including receiving notice of the grounds for termination and an opportunity to respond. See,
e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-46 (1985). To implement these
requirements, TYC had promulgated policies and procedures requiring the agency, when terminating
an employee, to first provide the employee a written recommendation-to-terminate letter
giving notice of the basis for the proposed discharge and of the opportunity to be heard by the
decision-maker prior to a final decision. If the recommendation was adopted and the employee was
terminated, the employee then had access to a grievance process that entailed an evidentiary hearing
in which TYC had the burden of proof as to the basis for termination. After hearing evidence, the
hearing officer would then prepare a proposal for decision, including proposed findings of fact and
conclusions of law, and transmit it to TYC's executive director. The executive director then made
the final decision on the grievance, and could either affirm the termination or reinstate the employee
with or without backpay and with or without discipline or other conditions.
Section 37 of S.B. 103 amended the human resources code to replace the "for cause"
requirement with a provision stating that "an employee of the commission is employed on an at-will basis." (3) The Legislature also mandated that TYC "establish procedures and practices governing:
(1) employment-related grievances submitted by commission employees; and (2) disciplinary
actions within the commission, including a procedure allowing a commission employee to elect to
participate in an independent dismissal mediation if the employee is recommended for dismissal." (4)
Section 37, along with the other provisions of S.B. 103, took effect on June 8, 2007. (5)
After section 37 took effect, TYC, although retaining a grievance process for
employees who are involuntarily terminated, amended its policies and procedures to emphasize that
the process "does not create a property interest in agency employment, nor is it a promise or
guarantee of any particular procedure." The agency also changed its grievance process to provide
that a termination decision made directly by the executive director--i.e., the same official who would
serve as the ultimate decisionmaker on any employee grievance concerning the termination--was
"final and not appealable" via that administrative process.
THE RECORD
The record in this case consists of Plaintiffs' live petition at the time of the hearing
on the TYC Defendants' plea to the jurisdiction, (6) evidence that the TYC Defendants attached to their
plea, and evidence that Plaintiffs attached to their response.
Plaintiffs' petition
Two of the four Plaintiffs--Patricia Logterman and Dr. Corinne Alvarez-Sanders--allege that on April 19, 2007 (which, it is undisputed, is the day on which S.B. 103 passed
the Texas Senate), they were each summoned to the office of TYC's then-acting chief of staff,
Dimitria Pope, and given the choice of either resigning from their jobs with the agency or being
fired. "When asked why," the two allege, "Pope replied that Plaintiffs would be told if and when
they chose to be terminated." "Threatened with possible investigation by the Texas Rangers and
the Office of the Inspector General," Logterman and Alvarez-Sanders further assert, they "chose
to be constructively discharged rather than face the possibility of being vilified in the media." They
add that although they "subsequently requested to withdraw their resignations, Pope denied their
requests" and similarly denied grievances each subsequently attempted to file.
A third Plaintiff, Dr. Don Brantley, alleges that "Pope also requested [that he]
quit or be fired on April 19, 2007." In contrast to Alvarez-Sanders and Logterman, Brantley
demanded "due process and a hearing." In response, Brantley complains, TYC did not proceed with
terminating him but instead suspended him until after section 37 took effect. Then, in July 2007,
TYC and its acting executive director at the time, Ed Owens, "informed Dr. Brantley that
because Senate Bill 103 took away his status as a for-cause employee, he was not entitled to
due process or a termination hearing," and "then terminated Dr. Brantley without affording him
due process or a hearing."
The fourth Plaintiff, Castillo, alleges that she has "been continuously employed by
the TYC from 1994 to the date of the filing of this action." Castillo asserts that, S.B. 103
notwithstanding, she "was and remains at all times a for cause employee" but that "[t]he TYC,
however, currently considers [her] to be an at will employee, despite the fact that she was employed
by the TYC before the effective date of Senate Bill 103." (7)
Based on these factual allegations, Plaintiffs collectively purport to assert three basic
sets of liability theories. First, Alvarez-Sanders and Logterman allege that (1) they were for-cause
employees as of the date of their resignations in April 2007; (2) they were constructively discharged;
and (3) TYC discharged them without complying with its procedures governing involuntary
termination of for-cause employees. Consequently, Alvarez-Sanders and Logterman reason, they
were "wrongfully terminated" by being dispossessed of their "vested property interest" in their jobs
without due process.
Second, all four Plaintiffs pled that section 37 is invalid and unenforceable because
it violates constitutional prohibitions against retroactive legislation, ex post facto laws, and bills
of attainder. (8) It thus follows, Plaintiffs further assert, that section 37 was ineffective to change
their respective employment statuses from for-cause to at-will. Also, predicated on these assertions,
Brantley further alleges that he continued to be a for-cause employee even after section 37's effective
date and that he was "wrongfully terminated" without adherence to the procedural protections to
which for-cause TYC employees were entitled.
Third, Alvarez-Sanders, Logterman, and Brantley allege that in connection with the
complained-of personnel actions, Pope and Owens "made several public and private defamatory
statements" regarding them. In particular, the former employees complain, their TYC personnel files
were "coded" to reflect that Alvarez-Sanders and Logterman had "resigned in lieu of termination"
and that all three were "ineligible for rehire without reason." They pled that these "defamatory
statements" have caused them to "be subject to public ridicule and hatred and . . . suffer severe
damage to their business and personal reputations."
Based on these allegations, Plaintiffs sought relief from the TYC Defendants (9) that
centered on two requested declarations under the Uniform Declaratory Judgments Act (UDJA): (10)
a declaration that section 37, which "attempted to remove the 'for cause' status of TYC
employees employed before that [June 8, 2007] date," violates constitutional prohibitions
against retroactive legislation, ex post facto laws, and bills of attainder; and
a declaration "that as a matter of law Plaintiffs were 'for cause' employees . . . after June 8,
2007, the effective date[] of Senate Bill 103."
Additionally, Alvarez-Sanders and Logterman sought "a declaratory judgment as to their 'for cause'
status as TYC employees at the time of their termination, April 19, 2007." With these declarations,
Plaintiffs prayed for attorney's fees as the UDJA permits. (11)
Plaintiffs further requested "prospective injunctive and/or equitable relief" barring
"TYC and its officials from enforcing Section 37 of Senate Bill 103" and "the TYC administrative
regulations that [are] derived from Section 37." Finally, the three former employee Plaintiffs prayed
for money damages, including compensation for injury to reputation, lost earnings and earning
capacity, and past and future mental anguish, based on theories of wrongful discharge, defamation,
and the "taking" of their "property interests" in their TYC employment.
"Plea to the jurisdiction and motion for summary judgment"
The TYC Defendants responded with a single filing styled as a "Plea to the
Jurisdiction and Motion for Summary Judgment." (12) In a section of the document titled "Plea to the
Jurisdiction," the TYC Defendants asserted the following grounds challenging the district court's
subject-matter jurisdiction over the claims against them:
Plaintiffs' claims for money damages from the TYC Defendants implicate sovereign
immunity and they have failed to plead a valid waiver of such immunity. In particular, the
UDJA does not waive immunity to the extent of declaring a right to money damages,
Plaintiffs have not alleged any valid takings claim, and the Tort Claims Act does not waive
immunity as to intentional torts like defamation.
While the Texas Constitution authorizes "direct claims for equitable relief against
governmental agencies for violations of . . . the Texas Bill of Rights," Plaintiffs have not
asserted a request for equitable relief to remedy their alleged wrongful-termination/due-process violation concerning Alvarez-Sanders, Logterman, and Brantley.
Although "TYC concedes that it is a proper party to this suit and that the [UDJA] waives its
immunity" to the extent "Plaintiffs' declaratory judgment action challenges the validity of
[section 37]," sovereign immunity bars any declaratory claims against TYC concerning
alleged ultra vires conduct, which must instead be asserted against the executive director in
his official capacity.
In any event, none of the four plaintiffs possess a justiciable interest that could support their
claims challenging the constitutionality of section 37:
Alvarez-Sanders and Logterman lack standing because they resigned prior to
section 37's effective date and "have simply not alleged any future harm" that could
give rise to a live justiciable interest on their part.
Castillo possesses no ripe justiciable interest.
Brantley's constitutional challenges are moot because he received all of the process
to which he would have been entitled as a for-cause TYC employee.
The declaratory claims asserted by Alvarez-Sanders, Logterman, and Brantley are also barred
because they seek declarations as to issues that are already presented by their wrongful-termination claims. Additionally, because the district court lacks subject-matter jurisdiction
over these plaintiffs' wrongful-termination claims, there is no justiciable controversy that
could support their declaratory claims.
In the "summary judgment" portion of the filing, the TYC Defendants asserted that
"Plaintiffs' declaratory judgment claim against TYC [and its executive director], in her official
capacity . . . fails as a matter of law because [section 37] is not an ex post facto or retroactive law."
In support of these grounds, the TYC Defendants asserted that the ex post facto law prohibition
applies only to penal statutes, Rogers v. Tennessee, 532 U.S. 451, 456 (2001); Barshop v. Medina
County Underground Water Dist., 925 S.W.2d 618, 633-34 (Tex. 1996), and that Plaintiffs
possessed no vested property right in the Legislature's continuing to grant them for-cause
employment status, only a mere expectancy based on the anticipated continuation of current law.
See, e.g., McMurtray v. Holladay, 11 F.3d 499, 504 (5th Cir. 1993) ("The Supreme Court long
ago established that, when a legislature extinguishes a property interest via legislation that affects
a general class of people, the legislative process provides all of the process that is due.") (citing
Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982); Bi-Metallic Inv. Co. v. State Bd. of
Equalization, 239 U.S. 441, 445-46 (1915)).
In support of their plea to the jurisdiction, the TYC Defendants attached evidence that
included, of relevance here, an affidavit from Dewey Poteet, a TYC in-house attorney who advises
the agency on personnel matters. (13) Attached to Poteet's affidavit were copies of TYC's policies
and procedures governing grievances by involuntarily terminated employees both before and after
section 37's implementation, previously described. Also attached was correspondence to and from
the agency relating to Brantley's termination and a grievance that he subsequently attempted to file
with the agency. The documents and Poteet's testimony reflect that:
On April 19, 2007, Pope provided Brantley a two-page recommendation-to-terminate letter
advising him of what Pope perceived as several failures by Brantley to perform four
"essential job functions" and her conclusion that his "continued employment is not in the
best interest of the agency as it moves toward reform." The letter further notified Brantley
that he had the right to raise with Owens "any facts regarding why you believe your
employment should not be terminated under these circumstances" before "any decision is
made regarding your termination."
On May 1, 2007, an attorney for Brantley wrote Owens asserting that the April 19, 2007
letter was insufficiently clear and specific regarding the factual bases for Brantley's
termination, and requesting clarification.
On May 15, 2007, Pope responded with a four-page amended recommendation-to-terminate
letter that cited specific examples of what Pope regarded as Brantley's resistance to the
reform initiatives of his superiors, failures to promptly respond to reports of physical abuse
of youth in TYC facilities, (14) and poor judgment in promoting a TYC employee who was later
disciplined for failure to "detect and address [a] pattern of sexual abuse at his facility."
On May 25, 2007, Brantley personally wrote Owens a seventeen-page letter taking issue with
Pope's assertions.
On the same day, Brantley and his attorney met with Owens. During this meeting, according
to Poteet, "both Dr. Brantley and Mr. Durst [his attorney] addressed the recommendation to
terminate and the reasons why they urged rejection of the recommendation."
Thereafter, as previously noted, S.B. 103 took effect on June 8, 2007. Subsequently, TYC
amended its grievance policies, effective June 20, 2007, to eliminate the right to a grievance
for employees who are terminated by the executive director.
On June 22, 2007--two days after TYC amended its grievance policies to eliminate
the right to a grievance for employees who (like Brantley) were terminated by the
executive director--Owens wrote Brantley advising him that he was upholding Pope's
recommendation to terminate his employment, and terminated Owens on that day.
According to Poteet, "Dr. Brantley's response to the recommendation, both verbal and
written, and the verbal and written response of Dr. Brantley's attorney, were considered
by Mr. Owens before he acted on and accepted Ms. Pope's recommendation to terminate
Dr. Brantley's employment."
Following his termination, the TYC Defendants' evidence reflects, Brantley
attempted to file a grievance regarding his termination, as had been permitted under the agency's
prior policies. However, TYC, Poteet explained, dismissed the grievance "on July 13, 2007,
pursuant to the agency's grievance policy . . . because under the agency's grievance policy in effect
at the time of Dr. Brantley's discharge . . . a decision to terminate employment made by the agency's
executive director is not subject to the full grievance process."
Finally, in addition to his testimony regarding Brantley, Poteet further averred that
Castillo had been continuously employed by TYC since 1994, "remains a TYC employee in good
standing," and that the agency "has not recommended that [her] employment be terminated, nor is
she under a threat of termination."
Plaintiffs' response
Plaintiffs filed a response in which they joined issue with both the TYC Defendants'
"plea to the jurisdiction" and "summary judgment" grounds. In support, they attached evidence that
included affidavits from each Plaintiff. (15) Material to our analysis, Alvarez-Sanders testified that,
consistent with her pleading allegations, Pope had given her the choice of either resigning or being
fired, gave her "15 minutes to make my decision," and that she had opted to resign out of fear
of being "thrashed and humiliated in the press by the TYC and its officials." Alvarez-Sanders added
that when she inquired as to the reason why Pope had taken this action, Pope "abruptly informed
me that if I chose to not resign, the reasons would be presented at my termination hearing."
Plaintiffs also attached affidavits from a former TYC general counsel, Neil Nichols, and a former
TYC human resources manager, Karen Giles, who purported to opine that the agency had not
followed its procedures for involuntary termination of for-cause employees in connection with its
"termination" of Alvarez-Sanders and Logterman. Furthermore, Alvarez-Sanders and Logterman
averred that under TYC's personnel policies, the agency's coding of their personnel files to
reflect that they resigned in lieu of termination and were ineligible for rehire implied that they had
committed misconduct.
Also of relevance, Brantley averred that, generally consistent with the
TYC Defendants' evidence, the agency had taken the position that he was not entitled to the
grievance process and evidentiary hearing because, as of the date of his termination, the agency's
grievance policies had been changed to make Owens's decision final. As for Castillo, she averred
that, consistent with her pleading allegations, "since the effective date of Senate Bill 103, the TYC
has classified me as an at-will employee" and "informed me that I no longer am a for cause employee
as it relates to my employment with the TYC and the State of Texas." However, Castillo did not
controvert Poteet's testimony that she had remained an employee in good standing and faced no
threat of termination.
Ruling
A hearing was held at which no further evidence was presented. The record reflects
that the parties and the district court addressed only the grounds designated within the "plea to
the jurisdiction" portion of the TYC Defendants' filing and did not reach those raised within the
"motion for summary judgment." Following the hearing, the district court partially granted the plea
and dismissed all of the claims asserted by Brantley and Castillo, as well as Alvarez-Sanders's and
Logterman's "claims for defamation, constitutional takings, and declaratory judgment." The court
did not elaborate as to the specific grounds on which it relied.
The district court's rulings left pending only Alvarez-Sanders's and Logterman's
"claim for wrongful discharge." The court granted the plea and dismissed this "claim" "to the extent
they seek to recover money damages" but denied it "to the extent they seek to recover equitable
relief" under that theory. The court afforded Alvarez-Sanders and Logterman the opportunity
"to replead their wrongful discharge claim to assert a claim for equitable relief against a proper
state official, in his/her official capacity" within fifteen days thereafter. The district court did not,
however, purport to immediately dismiss Alvarez-Sanders and Logterman's "claim for wrongful
discharge to the extent they seek to recover equitable relief" from TYC, although compliance with
the court's order would result in Plaintiffs non-suiting the agency by omission.
Both Plaintiffs and the TYC Defendants filed notices of appeal from the
district court's order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West 2008); see also
id. § 51.014(b) (West 2008) (automatic stay of trial court proceeding upon filing of notice of appeal
under subsection (a)(8)).
ANALYSIS
Plaintiffs bring nine issues on appeal, while the TYC Defendants bring two. (16) The
issues are most productively explained and analyzed according to the particular Plaintiff or Plaintiffs
to whom they pertain.
Castillo
Castillo, the sole Plaintiff currently employed at TYC, seeks only declaratory
and injunctive relief predicated on a challenge to section 37's constitutionality. In their third issue,
Plaintiffs urge that the district court erred in dismissing Castillo's claims for lack of ripeness.
Ripeness is in part an aspect of the justiciable controversy that is required
before the judicial branch is constitutionally empowered to resolve a dispute. See Patterson
v. Planned Parenthood, 971 S.W.2d 439, 442-43 (Tex. 1998) (observing that ripeness and other
justiciability doctrines derive in part from separation-of-powers principles and the constitutional
prohibition against advisory opinions). "To constitute a justiciable controversy, there must exist
a real and substantial controversy involving genuine conflict of tangible interests and not merely
a theoretical dispute." Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (quoting
Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Prot.
Ass'n, 640 S.W.2d 778, 779-80 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.)). Ripeness is
"peculiarly a question of timing"--specifically, whether the facts have developed sufficiently that
a plaintiff has incurred or is likely to incur a concrete injury. Perry v. Del Rio, 66 S.W.3d 239, 249-51 (Tex. 2001) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974)).
Ripeness is thus said to be lacking where the case involves "uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur at all." Patterson, 971 S.W.2d at 442
(quoting 13A Charles A. Wright et al., Federal Practice & Procedure § 3532, at 112 (2d ed. 1984)).
As the basis for her claimed justiciable interest in obtaining declaratory and injunctive
relief regarding section 37, Castillo pled that the agency "currently considers [her] to be an at
will employee, despite the fact that she was employed by the TYC before the effective date of
Senate Bill 103." Similarly, as evidence of her justiciable interest, Castillo averred that "since the
effective date of Senate Bill 103, the TYC has classified me as an at will employee" and that agency
officials had advised her that they no longer considered her a for-cause employee. However, Castillo
has neither alleged nor presented evidence that section 37 has had or is threatening to have any
tangible impact on her. In fact, the TYC Defendants presented unconverted evidence negating
that fact. See Miranda, 133 S.W.3d at 227. Namely, Poteet testified that Castillo "remains a
TYC employee in good standing" and that the agency "has not recommended that [her] employment
be terminated, nor is she under a threat of termination."
In urging that she nonetheless possesses a ripe, justiciable interest in her claims,
Castillo emphasizes that one's status as a for-cause public employee is considered to create a
property right in continued employment that is protected by procedural due process requirements.
See, e.g., Loudermill, 470 U.S. at 538-39. Consequently, Castillo reasons, she incurred an immediate
concrete injury at the moment section 37 took effect and "divested" her of that property right. As
Castillo explains her view on appeal, "where once [she] was clothed in the protection of a vested
right and due process before termination, she has been stripped of her protection and stands naked
before TYC without the rights she previously enjoyed." (Emphasis in original.) But this is merely
a restatement of the fact that Castillo comes within the class of individuals whose terms of
employment were altered by section 37--and that fact alone does not establish that she presently has
a ripe, justiciable interest in challenging that enactment. A justiciable interest in regard to a statute
requires more, "some actual or threatened restriction under that statute." Texas Workers' Comp.
Comm'n v. Garcia, 893 S.W.2d 504, 517-18 (Tex. 1995) (discussing the related concept of
standing). And whether section 37 will ever have anything more than merely a theoretical effect on
Castillo turns on at least two sets of contingencies: (1) whether her termination will ever occur or
be threatened, and (2) TYC's specific actions in that event. Consequently, Castillo's asserted interest
in the declaratory and injunctive relief rests upon the sorts of "uncertain or contingent future events
that may not occur as anticipated, or indeed may not occur at all" that characterize unripe claims.
Patterson, 971 S.W.3d at 442; see also Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 162 (1967)
(holding that claims were not ripe where new regulations might never affect plaintiffs and where
the impact of the regulation was not "felt immediately by those subject to it in conducting their
day-to-day affairs"); Garcia, 893 S.W.2d at 33-34 (plaintiff lacked standing to assert constitutional
challenge to new workers' compensation act where he "has submitted no claim for benefits under
the Act, may never do so," and, if he ever did, "there is no way to predict what action the
Commission may take on that claim"). Because the unconverted jurisdictional evidence negates the
ripeness of Castillo's claims, the district court properly dismissed them for want of subject-matter
jurisdiction. We overrule Plaintiffs' third issue.
Alvarez-Sanders and Logterman
"Wrongful termination"/due process
Alvarez-Sanders and Logterman asserted theories of "wrongful termination"
predicated on allegations that they were deprived of their procedural due process rights in their
employment by being constructively discharged. While dismissing their claims under this theory
to the extent they sought money damages, the district court denied the plea to the jurisdiction to the
extent of permitting Alvarez-Sanders and Logterman to replead, if possible, a viable claim for
equitable relief against a state official. In their first issue on appeal, the TYC Defendants urge
that this ruling was error because the record demonstrates an incurable jurisdictional defect
such that repleading would be futile. See Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
846 (Tex. 2007) (remanding to the trial court to dismiss claims with prejudice where pleadings
were incurably defective). Specifically, the TYC Defendants contend that Plaintiffs' pleadings and
the jurisdictional evidence negate an essential element of a viable due-process claim predicated
on constructive discharge, that the employer forced the employees' resignations with the intent
to deprive them of the procedural due process that would accompany involuntary termination.
See Fowler v. Carrollton Pub. Library, 799 F.2d 976, 981 (5th Cir. 1986); see University of Tex.
Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (holding that although
Texas Constitution refers to "due course" rather than the U.S. Constitution's "due process," the
phrases are not meaningfully distinct and federal interpretations of procedural due process are
persuasive authority when interpreting Texas's "due course" guarantee).
As a threshold matter, we question whether we have jurisdiction to consider this
ground for dismissal in the context of this interlocutory appeal where, as here, there is no indication
in the record that the TYC Defendants ever raised it before the district court. See Austin Indep. Sch.
Dist. v. Lowery, 212 S.W.3d 827, 834 (Tex. App.--Austin 2006, pet. denied) (we consider plea that
was filed and do not address whether the district court erred in denying the plea on a ground that
was not argued below); but see Texas State Bd. of Pub. Accountancy v. Bass, No. 03-09-00251-CV,
2011 Tex. App. LEXIS 294, at *14-15 n.2 (Tex. App.--Austin Jan. 14, 2011, no pet.) (noting
apparent exception where plaintiff purported to assert an ultra vires claim directly against a
state agency); Rusk State Hosp. v. Black, No. 12-09-00206-CV, 2010 Tex. App. LEXIS 4687, at *12
(Tex. App.--Tyler June 23, 2010, pet. granted) (declining to consider on interlocutory appeal
jurisdictional challenges not presented to or ruled on by the trial court). In any event, we would not
sustain the TYC Defendants' issue because we find no error in the district court's ruling as to these
claims. We agree with the TYC Defendants that Alvarez-Sanders and Logterman failed to allege
or present evidence that the TYC Defendants constructively discharged them with the intent
to deprive them of procedural due process. However, we disagree that the pleadings and evidence
affirmatively negate that element, as opposed to merely omitting it. Although Alvarez-Sanders and
Logterman did not assert that the TYC Defendants intended to deprive them of due process,
Plaintiffs asserted that they were given a choice to quit or be fired under "high-pressure"
circumstances, and that when they asked why, "Pope replied that Plaintiffs would be told if and when
they chose to be terminated." They further asserted that their requests to withdraw their resignations
were denied, and they were not permitted to file grievances. Rather than demonstrating an incurable
defect, the record reflects that Alvarez-Sanders and Logterman purported to assert a claim predicated
on due-process violations through constructive discharge, but failed to include sufficient facts
or allegations to support an element of that claim. Where, as here, the record fails to affirmatively
demonstrate incurable defects in jurisdiction, the appropriate remedy is to grant leave to amend
rather than to dismiss. See Miranda, 133 S.W.3d at 226-27.
The TYC Defendants further object that allowing Alvarez-Sanders and Logterman
to replead to seek equitable relief under their wrongful-termination/due-process theory is futile
because they cannot seek reinstatement and would still lack standing to challenge section 37 in any
event. Although we ultimately agree that Alvarez-Sanders and Logterman's claims for equitable
relief do not create a justiciable interest on their part in the constitutional challenges, as we explain
below, that conclusion alone does not render futile their opportunity to replead claims for equitable
relief based on their wrongful-termination/due-process theory. As the TYC Defendants emphasize,
these claims of Alvarez-Sanders and Logterman are based on facts that occurred months before
section 37 took effect. Furthermore, they could conceivably seek equitable remedies other than
reinstatement. See Than, 901 S.W.2d at 933 ("In general, . . . the remedy for a denial of due process
is due process.").
In short, the district court did not err in denying the TYC Defendants' plea to
the jurisdiction to the extent of permitting Alvarez-Sanders and Logterman the opportunity to
replead their wrongful-termination/due-process claims to seek equitable relief from an appropriate
state official (i.e., TYC's executive director). Having so held, however, the district court erred in
failing to dismiss Alvarez-Sanders and Logterman's wrongful-termination/due-process claims to the
extent they sought equitable relief from TYC itself. As the Texas Supreme Court has recently made
clear, a suit for equitable relief to restrain official conduct that is ultra vires of an agency's statutory
or constitutional powers must be asserted against a state official, in his or her official capacity,
and sovereign immunity bars such a claim if asserted against the agency itself. City of El Paso
v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009) (explaining that suits seeking to restrain illegal
acts of state officials "cannot be brought against the state, which retains immunity, but must be
brought against the state actors in their official capacity" because "'acts of officials which are not
lawfully authorized are not acts of the State'" (citation omitted)); see Creedmoor-Maha, 307 S.W.3d
at 513, 516 n.8 (recognizing that a suit to restrain a state official's unconstitutional conduct is a
type of ultra vires suit). Accordingly, we will reverse this portion of the district court's judgment
and render judgment dismissing the wrongful-termination/due-process claims of Alvarez-Sanders
and Logterman to the extent they are asserted against TYC. See Bass, 2011 Tex. App. LEXIS 294,
at *14-15 n.2 (noting that Texas Supreme Court has apparently concluded that this ground for
dismissal can be raised on appeal even in the context of a section 51.014(a)(8) interlocutory appeal).
"Defamation"
In their fifth issue, Plaintiffs urge that the district court erred in dismissing the
defamation claims of Alvarez-Sanders and Logterman. (17) Plaintiffs do not appear to dispute that
sovereign immunity would bar a common-law tort claim for defamation, particularly one seeking
money damages. (18) Seemingly recognizing this, Plaintiffs have attempted to recast the defamation
claims they plead as instead seeking equitable relief to remedy constitutional violations. Before the
district court, Plaintiffs attempted to recast these claims as seeking injunctive or declaratory relief
to remedy "a lifelong scarlet letter/stigma" that amounted to a bill of attainder. On appeal, Plaintiffs
have shifted focus to suggest that "[d]efamation may be likened to a claim against an employer for
an unconstitutional deprivation of a liberty interest," and cite cases recognizing that due process may
be violated by a public employer's discharge of an employee under "stigmatizing" circumstances
without giving the employee the opportunity to clear his or her name. See Arrington v. County of
Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992) ("A public employer may unconstitutionally deprive
its employee of a liberty interest if it discharges him under stigmatizing circumstances without giving
the employee an opportunity to clear his name."). We cannot conclude that the district court erred
in dismissing these claims.
As a threshold matter, any claim for equitable relief from a constitutional violation
would, again, be barred by sovereign immunity to the extent that Plaintiffs would purport to assert
it against TYC. See Heinrich, 284 S.W.3d at 372-73. If any such claim were viable, it would lie
instead against TYC's executive director. See id. And, as demonstrated by our detailed review
of Plaintiffs' pleadings, and however liberally we might construe those pleadings, Plaintiffs did
not plead any claim for equitable relief predicated on defamation or some related notion
of stigmatization, much less one predicated on due process, the theory on which Plaintiffs
apparently now rely. In this regard, we observe that, "[t]o assert a claim for the deprivation of this
constitutional right to a name-clearing hearing, a plaintiff must allege that he was a public employee,
that he was discharged, that stigmatizing charges were made against him in connection with his
discharge, that the charges were false, that the charges were made public, that he requested a
name-clearing hearing, and that the hearing was denied." Id. at 1447 (citing Rosenstein v. City of
Dallas, 876 F.2d 392, 395-96 (5th Cir. 1989). Furthermore, as Plaintiffs recognize, the public
charges must be so stigmatizing that they create a "badge of infamy" that destroys the employee's
ability to obtain other employment. Evans v. City of Dallas, 861 F.2d 846, 851 (5th Cir. 1988).
Additionally, injury to a plaintiff's reputation does not, in itself, amount to a deprivation of
this liberty interest. See Siegert v. Gilley, 500 U.S. 226, 233 (1991) ("Defamation, by itself, is
a tort actionable under the laws of most States, but not a constitutional deprivation."). The live
pleadings fall far short of alleging the facts required to assert a viable due-process claim based on
stigmatization. Nor can we find any indication in the record that Plaintiffs advanced such a
theory, or sought leave to replead it, before the district court. (20) In short, we find no error in the
district court's dismissal of Plaintiffs' defamation claims, and overrule their fifth issue.
"Takings"
In their sixth issue, Plaintiffs urge that the district court erred in dismissing any of
their claims predicated on the alleged "taking" of their property rights in continued employment. (21)
However, as the TYC Defendants have pointed out, none of the Plaintiffs have asserted, or could
assert, a viable takings claim predicated on the "taking" of a public employee's property right
in continued employment. See Bates v. Texas State Technical Coll., 983 S.W.2d 821, 826 n.8
(Tex. App.--Waco 1998, pet. denied) (rejecting takings claim by employee whose teaching contract
was not renewed and stating that the court could "find no cases that hold that 'property' applies to
an individual's property interest in continued employment."); see also Seals v. City of Dallas,
249 S.W.3d 750, 759 (Tex. App.--Dallas 2008, no pet.) (relying on Bates for the proposition that
courts have refused to interpret the takings clause to protect an employee's interest in public
employment); De Mino v. Sheridan, 176 S.W.3d 359, 368-69 (Tex. App.--Houston [1st Dist.] 2004,
no pet.) (relying on Bates to conclude that non-renewal of teaching contract could not give rise to
takings claim; stating that "[plaintiff] directs us to no authority supporting his contention that his
personal interest in employment at UH or elsewhere constitutes a 'property' right for purposes
of the 'takings' clause"). Among other problems, the State cannot, as a matter of law, "take" a
public employee's property right in continued employment "for public use" in the manner
contemplated by the takings clause. See Steele v. City of Houston, 603 S.W.2d 786, 789 (Tex. 1980)
("The Constitution limits compensation to damages 'for or applied to public use,' and judicial
restraints have narrowed that phrase to damages which arise out of or as an incident to some kind of
public works."). Because these jurisdictional defects are incurable, the district court did not err in
dismissing the takings claims. See Miranda, 133 S.W.3d at 227. We overrule Plaintiffs' sixth issue.
UDJA
Alvarez-Sanders and Logterman assert two sets of claims for declaratory relief
under the UDJA. First, they seek declarations that they had the status of for-cause employees
in April 2007, as of the time of their alleged constructive discharges. The district court properly
dismissed these claims because the requested declarations overlap elements of their wrongful-termination/due-process claims and "[a]n action for declaratory judgment will not be entertained if
there is pending, at the time it is filed, another action or proceeding between the same parties and
in which may be adjudicated the issues involved in the declaratory judgment action." Texas Liquor
Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970); see BHP Petroleum
Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) ("The Declaratory Judgments Act is 'not available
to settle disputes already pending before a court.'" (citations omitted)). Although Plaintiffs appear
to question this rule in their seventh and eighth issues, those contentions are without merit, and we
overrule them.
Second, Plaintiffs urge in their fourth issue that even though Alvarez-Sanders
and Logterman were no longer TYC employees at the time section 37 took effect, their claims for
equitable relief give rise to standing on their part to obtain declaratory and injunctive relief
challenging that statute. Consequently, they reason, the district court erred in dismissing these
claims. These arguments fail for reasons similar to their arguments regarding Castillo's claims.
As of the date section 37 took effect, Alvarez-Sanders and Logterman were no longer
employees of TYC, and had not been for approximately two months. At that juncture, it was thus
impossible for them to suffer the required "actual or threatened restriction under that statute"
necessary for standing. Garcia, 893 S.W.2d at 517-18. That condition would continue to exist
unless and until they could, in light of the foregoing holdings, (1) plead a viable claim for equitable
relief based on wrongful termination, (2) prevail, and (3) the equitable relief they ultimately obtained
would include reinstatement, such that section 37 would apply to them. These contingencies, to say
the least, are far too remote and speculative at the present time to give rise to a justiciable interest
on the part of Alvarez-Sanders and Logterman. Patterson, 971 S.W.2d at 442 (claim is unripe
where the case involves "uncertain or contingent future events that may not occur as anticipated, or
indeed may not occur at all"); see also Perry, 66 S.W.3d at 249-51 (even in instances where claim
might eventually ripen based on subsequent events, trial court must dismiss claim if, at time of
adjudication, it is not ripe). We overrule Plaintiffs' fourth issue.
Brantley
Unlike the other Plaintiffs, Brantley was (1) formally terminated and (2) this event
occurred after section 37 took effect. Like Alvarez-Sanders and Logterman, Brantley asserted
"defamation" and "takings" claims and Plaintiffs challenge the dismissal of those claims on the same
grounds they assert regarding the other two former employee Plaintiffs. We have already disposed
of these contentions above.
Brantley also asserted a theory of wrongful termination predicated on the allegations
that TYC discharged him without "due process," that is, without affording him the procedural
protections to which for-cause TYC employees had been entitled. Additionally, like the other
three Plaintiffs, Brantley asserted claims for declaratory and injunctive relief challenging section 37's
constitutionality. The TYC Defendants attacked the district court's jurisdiction over these claims
in part on the basis that the uncontroverted jurisdictional evidence establishes that Brantley
was terminated only after receiving the same process that a for-cause employee would have received,
rendering his claims moot. Consequently, they reasoned, there was no justiciable controversy
regarding Brantley's claims. In his first issue, Brantley asserts that the district court erred in
dismissing his claims for declaratory and injunctive relief challenging section 37's constitutionality.
In his second issue, Brantley contends in the alternative that the district court erred in dismissing his
wrongful-termination claim and that he should have been permitted to replead that claim to seek
equitable relief, in the same manner that Alvarez-Sanders and Logterman were. We agree in part.
Although the jurisdictional evidence established that Brantley received pre-termination notice and an opportunity to respond consistent with TYC's former policies governing
involuntary terminations, it remains that Brantley did not receive all of the process to which
he claims due process would have entitled him as a for-cause employee. Namely, Brantley was
denied an evidentiary hearing on the grounds for his termination. The TYC Defendants tacitly
acknowledge this fact in emphasizing that Brantley was not entitled to an evidentiary hearing under
the grievance procedures in effect after the agency amended them effective June 20, 2007 to
eliminate the right to an evidentiary hearing where, as here, the executive director terminates the
employee. Consequently, whatever interest Brantley possessed in obtaining the judicial relief he
sought was not entirely extinguished by the process he received. The district court, therefore, would
have erred in dismissing Brantley's claims based on a conclusion that they were moot.
On appeal, the TYC Defendants, in a supplemental brief, suggest that Brantley's
claims should nonetheless be dismissed because he did not, as a matter of law, allege facts
that constitute a constitutional violation. See Creedmoor-Maha, 307 S.W.3d at 513, 516 n.8. The
TYC Defendants essentially reurge their arguments--styled as "summary judgment" grounds in
the district court--that the ex post facto law prohibition applies only to penal statutes, see Rogers,
532 U.S. at 456; Barshop, 925 S.W.2d at 633-34, and that Plaintiffs possessed no vested
property right in the Legislature's continuing to grant them for-cause employment status, only a
mere expectancy based on the anticipated continuation of current law. See, e.g., McMurtray, 11 F.3d
at 504. The mere fact that the TYC Defendants labeled this jurisdictional challenge as a "summary-judgment" ground, as opposed to a ground in their plea to the jurisdiction, is not in itself dispositive
of the TYC Defendants' contention. See Austin State Hosp. v. Graham, No. 10-0674, 2011 Tex.
LEXIS 611at *4-6 (Tex. Aug. 26, 2011) (explaining that an interlocutory appeal may be taken from a
refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to
the jurisdiction or some other procedural vehicle). But, as Plaintiffs emphasize, the district court
did not reach this ground for dismissal, however labeled. Under the precedents of this Court, as
previously noted, we do not have jurisdiction in the context of this interlocutory appeal to reach
this ground for dismissal, whatever its merits. Lowery, 212 S.W.3d at 834 ("we . . . do not address
whether the district court erred in denying the plea on a ground that was not argued below.").
Like Alvarez-Sanders and Logterman, Brantley should be permitted to replead his
wrongful-termination/due-process claim to seek equitable relief against a proper state official. To
this extent, the district court erred in dismissing Brantley's wrongful-termination/due-process claim.
However, the district court properly dismissed this claim to the extent he seeks monetary relief
or seeks any relief from TYC. Heinrich, 284 S.W.3d at 372-74. Likewise, because Brantley's
constitutional challenges under the UDJA seek declarations regarding issues that are already
elements of his wrongful-termination/due-process claim, the district court did not err in dismissing
his UDJA claims. See Texas Liquor Control Bd., 456 S.W.2d at 895.
CONCLUSION
We affirm the district court's order except in two respects. First, we reverse the
district court's order to the extent it fails to dismiss the wrongful-termination/due-process claims
of Alvarez-Sanders and Logterman against TYC. We render judgment dismissing those claims
for want of subject-matter jurisdiction. Second, we reverse the district court's order dismissing
Brantley's wrongful-termination/due-process claim to the extent it would seek equitable relief
against an appropriate state official. We render judgment that Brantley is to replead said claim
against a proper state official within fifteen days of the date of this Court's judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Henson;
Justice Patterson not participating
Affirmed in part; Reversed and Rendered in part
Filed: October 12, 2011
1. Act of May 25, 2007, 80th Leg., R.S., ch. 263, §§ 1-78, 2007 Tex. Gen. Laws 421, 421-57
(current version at Tex. Hum. Res. Code Ann. §§ 61.001-.130 (West 2001 & Supp. 2010)); see
Senate Research Center, Bill Analysis, Tex. S.B. 103, 80th Leg., R.S. (2007) (discussing background
of the amendments).
2. Act of May 25, 2007, 80th Leg., R.S., ch. 263, § 37, 2007 Tex. Gen. Laws 421, 439
(current version at Tex. Hum. Res. Code Ann. § 61.035(b)).
3. Act of May 25, 2007, 80th Leg., R.S., ch. 263, § 37, 2007 Tex. Gen. Laws 421, 439
(current version at Tex. Hum. Res. Code Ann. § 61.035(b)).
4. Id.
5. Act of May 25, 2007, 80th Leg., R.S., ch. 263, § 78, 2007 Tex. Gen. Laws 421, 457.
6. Plaintiffs' live pleading was their first amended petition. The TYC Defendants have
attached to their appellate briefing what purports to be a copy of a second amended petition
that Plaintiffs filed after the district court's ruling. The TYC Defendants cite this pleading to support
arguments that Plaintiffs cannot cure, via repleading, the jurisdictional defects that were identified
in the district court's order. Strictly speaking, however, this pleading is not part of the record in this
case, nor was it before the district court at the time of the ruling on appeal.
7. Castillo also purports to sue on behalf of a putative class of current TYC employees. The
record does not reflect that a class-certification motion has either been filed or ruled upon below.
8. See U.S. Const. art. I, § 9, cl. 2 ("No Bill of Attainder or ex post facto Law shall be
passed."); U.S. Const. amend. XIV, § 1 ("nor shall any State deprive any person of life, liberty, or
property, without due process of law"); Tex. Const. art. I, §§ 16 ("No bill of attainder, ex post facto
law, retroactive law, or any law impairing the obligation of contracts, shall be made."), 19
("No citizen of this State shall be deprived of . . . property, privileges or immunities . . . except by
the due course of the law of the land.").
9. In addition to naming the TYC and its current executive director, in her official capacity,
as defendants, Plaintiffs also sued Owens and Pope individually. Additionally, Plaintiffs purported
to sue Owens and Pope in their official capacities even though neither is currently employed by the
agency. Because none of the individual defendants are (or can be) parties to this appeal, and because
any formal distinctions between the TYC Defendants and the former officers in their official
capacities are not material to our analysis (the agency-versus-officers-in-official-capacity distinction
becomes relevant chiefly to prospective relief that would lie against the current executive director,
see City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009) (explaining that suits seeking
to restrain ultra vires acts of state officials "must be brought against the state actors in their official
capacity")), we identify the defendants simply as the "TYC Defendants" for clarity and convenience.
We have similarly corrected our caption, which originally bore, in error, the names of additional
parties before the district court.
10. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2008).
11. See id. § 37.009 (West 2008).
12. The individual defendants also joined in the motion for summary judgment. Because only
the grounds asserted by the TYC Defendants are pertinent to this appeal, we discuss only those.
13. The TYC Defendants also attached documents reflecting an abortive attempt by
Logterman and Alvarez-Sanders to litigate in federal court some of the same claims that Plaintiffs
assert in this proceeding.
14. Pope specifically cited Brantley's failure to act on "some serious incident reviews
regarding the superintendent at a facility having reportedly sprayed water onto two youths who
had climbed a tree" and "complaints about a practice by which youth were kept at parade rest" for
55-minute intervals.
15. The affidavits contain numerous unsupported legal conclusions to the effect that the
Plaintiffs' for-cause status constitutes a "vested property right." See City of San Antonio v. Pollock,
284 S.W.3d 809, 816 (Tex. 2009) (observing that unsupported legal conclusions are not competent
evidence and may not support a judgment even in the absence of an objection).
16. Several of the arguments asserted in the TYC Defendants' briefing in support of their
cross-appeal are in substance responses to Plaintiffs' appellate arguments rather than grounds for
altering the judgment in their favor or cross-points asserting alternative grounds for affirming the
district court's judgment. We have analyzed them accordingly.
17. Within this issue, Plaintiffs also advance the same arguments with respect to the dismissal
of Brantley's defamation claims.
18. (19)
19. §
--
20. We further observe that the second amended petition that is attached to the TYC
Defendants' briefing does not purport to assert such a theory.
21. As with their fifth issue, within their sixth issue Plaintiffs advance the same arguments
with respect to the district court's dismissal of Brantley's takings claim.
|
80 Cal.Rptr.2d 376 (1998)
68 Cal.App.4th 514
In re the MARRIAGE OF Andria M. and Alexandre A. ROCHA.
Andria M. ROCHA, Respondent,
v.
Alexandre A. ROCHA, Appellant.
No. E021150.
Court of Appeal, Fourth District, Division Two.
December 9, 1998.
Alexandre A. Rocha, in pro. per., for Appellant.
Milo F. DeArmey, Santa Ana, for Respondent.
OPINION
HOLLENHORST, Acting P.J.
After Andria Rocha (wife) filed an order to show cause regarding an increase in child support payments from her former spouse Alexandre Rocha (husband), the court ordered an increase and included as income that portion of husband's student loan for law school above the cost of books and tuition. Husband appeals persuasively arguing that the student loan retains its loan status irrespective of the fact that the proceeds were in excess of the costs of books and tuition. Thus, we reverse.
FACTS
The parties were married in 1989 and their marriage was dissolved in 1994. Two children were born of that union. Husband entered law school and obtained loans to finance his tuition and for his living expenses while in school.[1] The difference between Alexandre's student loans and his actual school expenses, tuition and books, is about $9,000. The court found that the loans received in excess of actual school expenses are income for purposes of assessing child support despite the fact that this income is derived from loans.[2]
DISCUSSION
This case requires us for the first time to consider whether a student loan, later subject to repayment, falls within the meaning of Family Code section 4058.[3] It does not.
Section 4058 defines income for purposes of determining support. It provides: "(a) The annual gross income of each parent *377 means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following: [¶] (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article. [¶] (2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business. [¶] (3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts. [¶] (b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children. [¶] (c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party's gross or net income."
The trial court noted that this section does not specifically include proceeds from loans as income but concluded that failure to mention loans as a source of income does not exclude them. In Stewart v. Gomez (1996) 47 Cal.App.4th 1748, 55 Cal.Rptr.2d 531, we noted, "`the definition of income under the Agnos Act is very broad, while the deduction provisions are Unspecific and should be narrowly construed.'" (Id., at p. 1755, 55 Cal.Rptr.2d 531, quoting In re Marriage of Rine (1993) 18 Cal.App.4th 953, 958, 23 Cal.Rptr.2d 10.) However, we also observe that in cases cited both in Stewart and those items listed as sources of income in section 4058, all represent a form of income where there is no expectation of repayment or reimbursement. Thus, we do not find a loan for education which includes proceeds over that required for books and tuition to be income for purposes of section 4058.
While no California case has considered this issue, it has been considered in other jurisdictions. In Thibadeau v. Thibadeau (Wis.App.1989) 150 Wis.2d 109, 441 N.W.2d 281, 285, the Wisconsin court held that federally sponsored educational grants are not subject to inclusion as income because they are need based. In Milligan v. Addison (Fla.App.1991) 582 So.2d 769, 770, overruled on other grounds, Overbey v. Overbey (Fla. 1997) 698 So.2d 811, 815, the Florida Court of Appeal determined that a student loan for a law student could not be considered income for purposes of child support because the loan had to be repaid. That court also noted the student loan was unrestricted and at least a portion of the loan was for household expenses. Likewise, in In re Marriage of Syverson (Mont.1997) 281 Mont. 1, 931 P.2d 691, 698, the Supreme Court of Montana found that Pell grants, which were not loans and not expected to be repaid constituted income for purposes of child support. Finally, in Schaerrer v. Westman Com'n. Co. (Colo.1989) 769 P.2d 1058,1063, the Supreme Court of Colorado found that guaranteed student loans were not subject to garnishment for preexisting debts because the state garnishment laws were inconsistent with the Federal Guaranteed Student Loan Program.
In Gilbertson v. Graff (Minn.App.1991) 477 N.W.2d 771, 774, the Minnesota Court of Appeal held that the difference in a student loan less books and tuition constituted income for purposes of child support. In that case, the court relied on a Minnesota statute which defines income as any form of payment made on a periodic basis. The court also noted that had the couple remained married and husband was a student, that both would have benefited from the student loan proceeds. We are not convinced by that rationale. *378 Here, the parties were no longer married and where the marriage is intact, the community would have been responsible for repayment of the loan. It is unclear whether husband would later get credit for repayment of that loan by himself by diminishing his disposable income were we to consider the difference to be income for purposes of child support.
Thus, we conclude that the better approach is to simply recognize that a student loan is not income. It does not expressly qualify under the guidelines set forth in section 4058, nor do such loans share similar features with those specifically enumerated items designated to qualify as income. We therefore conclude that the trial court erred in considering the difference in student loan funds used for living expenses as income.
DISPOSITION
The judgment is reversed and the case is remanded for reconsideration of child support with directions to delete living expenses derived from a student loan as income. Appellant is to recover costs on appeal.
RICHLI and WARD, JJ., concur.
NOTES
[1] American Bar Association standards limit the amount of hours a law student may work outside of class.
[2] The court also found that Alexandre received income of $300 per month from his part-time paralegal business. This income is not challenged as part of the instant appeal.
[3] All further statutory references are to the Family Code unless otherwise indicated.
|
3 Cal.3d 702 (1970)
477 P.2d 729
91 Cal. Rptr. 497
In re RUBEN R. CANDELARIO on Habeas Corpus.
Docket No. Crim. 14327.
Supreme Court of California. In Bank.
December 21, 1970.
*704 COUNSEL
Ruben R. Candelario, in pro. per., Robert K. Puglia, under appointment by the Supreme Court, and McDonough, Holland, Schwartz, Allen & Wahrhaftig for Petitioner.
Thomas C. Lynch, Attorney General, Edward A. Hinz, Jr., and James T. McNally, Deputy Attorneys General, for Respondent.
OPINION
WRIGHT, C.J.
Petitioner was convicted by a jury in 1964 of selling heroin. (Health & Saf. Code, § 11501.) The information also alleged that he had suffered a 1953 felony conviction for possession of marijuana.[1] (Health & Saf. Code, § 11530.) At the time of arraignment for plea, petitioner pleaded not guilty to the substantive offense, but admitted the prior felony conviction. The court entered its judgment on May 27, 1964. Although the minutes of the court for that date and the abstract of judgment dated May 27, 1964, recite that petitioner was convicted of the heroin offense, neither contains a finding on the 1953 conviction. Each declares only that petitioner was found guilty of the substantive offense.
Petitioner was remanded to the custody of the sheriff on May 27, 1964, for delivery to the Department of Corrections for the term prescribed by law. Subsequently, on June 31, 1964, the trial court filed an amended abstract of judgment to which the prior conviction had been added. The 1964 conviction was affirmed on appeal. (People v. Candelario (1965) 239 Cal. App.2d 68 [48 Cal. Rptr. 694].)
In this habeas corpus proceeding we consider the effect of the action of the trial court in amending the 1964 judgment.
*705 Petitioner contends that the trial court was without jurisdiction to amend the abstract of judgment to show the 1953 prior conviction; that in doing so, the court subjected him to forbidden double jeopardy.
(1a) For reasons which we will set out below, we have concluded that the finding of the prior conviction was improperly added by an amendment to the judgment and cannot, therefore, be used to enhance petitioner's 1964 sentence.
(2) It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. (People v. Schultz (1965) 238 Cal. App.2d 804, 807 [48 Cal. Rptr. 328]; People v. Flores (1960) 177 Cal. App.2d 610, 613 [2 Cal. Rptr. 363].) The power exists independently of statute and may be exercised in criminal as well as in civil cases. (People v. Flores, supra, at p. 613.) The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. (In re Roberts (1962) 200 Cal. App.2d 95, 97 [19 Cal. Rptr. 147].) The court may correct such errors on its own motion or upon the application of the parties. (People v. Flores, supra, at p. 613.)
(3) Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is "whether the error was made in rendering the judgment, or in recording the judgment rendered." (46 Am.Jur.2d, Judgments, § 202.) (4) Any attempt by a court, under the guise of correcting clerical error, to "revise its deliberately exercised judicial discretion" is not permitted. (In re Wimbs (1966) 65 Cal.2d 490, 498 [55 Cal. Rptr. 222, 421 P.2d 70].)
An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. (Morgan v. State Bd. of Equalization (1949) 89 Cal. App.2d 674, 682 [201 P.2d 859]; Waters v. Spratt (1958) 166 Cal. App.2d 80, 86 [332 P.2d 754], disapproved on another ground in Kusior v. Silver (1960) 54 Cal.2d 603, 616 [7 Cal. Rptr. 129, 354 P.2d 657]; see Bastajian v. Brown (1941) 19 Cal.2d 209, 214-215 [120 P.2d 9].)
(1b) It cannot be disputed that the amendment in question substantially affects petitioner's rights. Conviction of violation of Health and Safety Code section 11501, a felony, carries a penalty of from five years to life imprisonment, without eligibility for parole for at least three years. If the defendant has suffered one prior narcotics felony conviction, however, the minimum *706 prison term is aggravated to 10 years, without eligibility for parole for the same period.
The record in the present case does not permit a finding that the error involved was clerical error. At the time of petitioner's arraignment he was charged with the substantive offense of sale of heroin and with the prior conviction of possession of marijuana. He initially denied the allegation of the prior conviction, but subsequently admitted it. The prior conviction was not mentioned at trial except to impeach petitioner's testimony. The court made numerous references to the 1953 conviction at the time of sentencing. The minute order of judgment, however, dated May 27, 1964, fails to refer to a prior conviction, reciting only that petitioner was convicted of violating Health and Safety Code section 11501. The abstract of judgment signed by the court committing petitioner to state prison, dated May 27, 1964, also fails to refer to the conviction, although the printed form contains a box specifically for such entries. All of the other sections related to special findings (i.e., whether petitioner was armed or was adjudged an habitual criminal) are properly completed.
(5) It is clear that since petitioner admitted the prior conviction, the trier of fact need not have made an independent determination of its validity. (Pen. Code, § 1158; Health & Saf. Code, § 11501.) Admission of the prior offense, however, does not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court.
Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true.[2] (People v. Huffman (1967) 248 Cal. App.2d 260, 261 [56 Cal. Rptr. 255].) Even when, as in the present case, the defendant admits the prior conviction before trial, the court is not compelled to make a finding on the charge. (People v. Superior Court (1968) 69 Cal.2d 491, 501 [72 Cal. Rptr. 330, 446 P.2d 138].) "[B]eing silent upon the matter of a prior conviction, the judgment must be construed as one imposing a sentence for a first offense only."[3] (People v. Noland *707 (1939) 30 Cal. App.2d 386, 391 [86 P.2d 363].) It cannot be presumed in every case, therefore, that failure of the court to include the prior conviction in the judgment is inadvertent clerical error.
(1c) The Attorney General contends that the record amply supports a finding that the error was clerical, that the trial court inadvertently failed to include the prior conviction in its judgment. He relies primarily on the trial court's statement on sentence:
"BY THE COURT: ... The defendant has, during the course of this proceeding as well as today, including today, admitted a prior conviction of a narcotic felony. He is before the Court for sentencing under Section 11501 of the Health and Safety Code which is furnishing or selling heroin. He is a heroin addict by his own admission. The Court realizes that there is both the Department of Corrections to send the defendant to an affiliated institution, the rehabilitation narcotics rehabilitation center. However, the Court also realizes that the narcotic rehabilitation center is for persons who primarily are addicts and don't do not get into trouble otherwise. The defendant here has been in trouble ever since 1947 when he was a juvenile. He has a long criminal record for various offenses including burglary and other crimes. A rehabilitation center is primarily interested in medical cases and not in persons who have had criminality exhibited in their background in other areas.
"The Court feels that the defendant, however, should receive treatment and suggests to the Department of Corrections that that be given to him.
"Accordingly, it's the judgment of this Court that the defendant be placed in custody of the Department of Corrections and imprisoned in the Department of Corrections for the period of time prescribed by law."
The quotation is not dispositive. The references to the prior conviction, taken in context, merely evidence the concern of the trial court for petitioner's health and that commitment to the rehabilitation center is inappropriate.
We conclude, therefore, that the attempted amendment of the 1964 judgment adding the 1953 prior felony narcotics conviction is invalid and ineffective. Thus, it may not be used to aggravate petitioner's present sentence.
Petitioner also contends that the conviction for possession of marijuana was obtained through the use of illegally obtained evidence and that an extrajudicial confession of codefendant was introduced against him at trial *708 in violation of his Sixth Amendment rights as announced in Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]. In view of our conclusion that the 1953 conviction may not be used to aggravate the term on his 1964 conviction, we need not consider these contentions or his claim that he was denied appointed counsel on his appeal from that conviction.
The amendment to the abstract of judgment being in excess of the court's jurisdiction is ineffective for any purpose. The Adult Authority is therefore directed to fix petitioner's sentence and determine his eligibility for parole on the basis of the original abstract of judgment of May 27, 1964. Since petitioner is not now entitled to his release in the absence of action by the Adult Authority, the order to show cause is discharged and the writ of habeas corpus is denied.
McComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurring.
NOTES
[1] The 1953 conviction was affirmed on appeal in People v. Candelario (1954) 126 Cal. App.2d 408 [272 P.2d 62].
[2] Similar benefits accrue to the defendant when the trier of fact fails to specify the degree of a crime. In such circumstances, even on a plea of guilty, the crime is deemed to be of the lesser degree. (Pen. Code, §§ 1157 and 1192.)
[3] Refusal to find with respect to the prior conviction is of particular significance in cases such as the present one since at the time of petitioner's trial it constituted the only means by which the judge could avoid the requirement of Health and Safety Code section 11718 that there be consent by the district attorney to dismissal of a narcotics prior. That requirement has since been held to be an unconstitutional infringement upon the separation of powers. (People v. Tenorio (1970) ante, p. 89 [89 Cal. Rptr. 249, 473 P.2d 993].)
|
722 S.W.2d 45 (1986)
ROBERT PARKER'S TRUCK AND TRAILER REPAIR, INC., D/B/A Victoria Mack Sales and Services, Appellant,
v.
Ben P. SPEER, Appellee.
No. 01-86-0142-CV.
Court of Appeals of Texas, Houston (1st Dist.).
December 11, 1986.
*46 Stan Nix, Stan Nix & Associates, Houston, for appellant.
Eugene J. Pitman, De Lange, Hudspeth, Pitman & Katz, Houston, for appellee.
Before DUGGAN, HOYT and LEVY, JJ.
OPINION
LEVY, Justice.
Appeal is taken in an assignment of account case where, in a bench trial, the court entered judgment against appellant, the account debtor, for $86,603.35 plus $3,500 in attorney's fees, plus interest and costs, and in favor of appellee, the assignee of the account.
The appellant is in the business of selling and repairing trucks. In December of 1980, appellant sold 12 trucks to El Tex Drilling Company that were to be equipped *47 with rigging before delivery. Ted Pennington, sales manager for appellant, arranged for the rigging work to be performed by K & K Truck Rigging Service, Inc. ("K & K"), for $367,252.
Pennington was then informed by John L. Kissinger, Jr., an agent and president of K & K, that K & K needed to obtain interim financing from either Allied Bank or appellee before work could begin. Kissinger then requested that Pennington provide K & K with an invoice and a letter to appellee stating that appellant would make payments with checks designating both K & K and appellee as joint payees. Pennington complied with the request and transmitted the letter and invoice.
The letter was dated December 16, 1980, signed by Pennington without designation of his position with appellant, and delivered to appellee by Kissinger. Appellee Speer then delivered a check in the amount of $100,000 to K & K on December 17, 1980, in return for a promissory note executed by Kissinger in the amount of $104,200. Eventually, work on several of the trucks was completed, and appellant delivered two other checks totaling $138,593 to K & K dated February 6, 1981, for work completed on the El Tex trucks as well as on those of other customers. Appellee was not designated as a payee on either check. Neither K & K nor Kissinger paid appellee any amount in satisfaction of the note. Appellant was then contacted by appellee's attorney and, on April 9, 1981, paid $17,596.65 to appellee, the amount remaining unpaid for the work performed by K & K.
Appellee thereafter sued appellant, Pennington, and Kissinger to recover upon its agreement with appellant to assign to appellee the account payable owing by appellant to K & K, and the action against Kissinger being based upon the promissory note in the amount of $104,200. Kissinger individually was non-suited after being discharged in bankruptcy.
Essentially, the trial court determined in its findings of fact that appellee loaned Kissinger $100,000 and took his promissory note in the amount of $104,200, which included agreed interest; that K & K, the holder of a purchase order from appellant, assigned the account receivable evidenced thereby to appellee to secure such indebtedness; that appellant had notice of that assignment before making any payment thereunder; that Pennington had authority to order the services listed on the purchase order and to disburse payment therefor; and that appellant became indebted to K & K, pursuant to the purchase order, for sums in excess of $104,200, but made payment of such amounts solely to K & K before April 9, 1981, when appellant paid the sum of $17,596.65 to appellee. The court also found that appellee made timely demand for payment and that attorney's fees of $3,500 were reasonable for the services rendered to appellee in this cause.
As its conclusions of law, the court determined that appellant had actual timely knowledge of the assignment of such account payable and was indebted to appellee for the balance owing and for attorney's fees and costs.
Appellant states in points of error one and two that there is no evidence or "insufficient evidence as a matter of law" to support the finding that appellant had notice of the assignment of the account to appellee. The appropriate inquiry, under these points, is whether the record contains evidence of probative value to support the finding. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). Our review is limited to considering only the evidence and inferences tending to support the finding and disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). If the record contains any evidence, whether direct or circumstantial, amounting to more than a mere scintilla, appellant's points must be overruled. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). Assignment of accounts is governed by the following provision:
The account debtor is authorized to pay the assignor until the account debtor receives notification that the amount due or to become due has been assigned and *48 that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the account debtor, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless he does so the account debtor may pay the assignor.
Tex.Bus. & Com.Code Ann. sec. 9.318(c) (Tex.UCC) (Vernon Supp.1986). No particular method or form of notification is stated.
Appellee contends that the evidence is sufficient to support a finding that the appellant had actual notice of the assignment. "Actual notice" embraces those things that a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed. Woodward, 237 S.W.2d 286.
Pennington testified that Kissinger told him that K & K had to obtain financing to be able to begin the job and that Allied Bank and appellee Speer were potential financiers. Pennington also admitted that he signed a letter to appellee typed by the sales secretary, Clara Olson, acknowledging that payment would be made by checks bearing the names of K & K and appellee as joint payees. Clara Olson, at Pennington's request, initiated an inquiry in which she spoke with Kissinger, visited Allied Bank, and determined erroneously that only K & K's name was to be designated on the checks as payee. Clearly, appellant's agents possessed enough information to cause them to make a reasonable inquiry into the existence of an assignment.
However, appellant made no attempt to contact the only other potential financier, Speer, the appellee. Pennington testified that he did not attempt to contact Speer. He never did ask Kissinger for appellee's address or phone number to confirm who was to be named as payee on the checks. If an obligor has such knowledge of facts as is sufficient to put him on inquiry about an assignment, he is not entitled to rely only on statements made to him by the assignor after receiving such information. See Winkler Construction Co. v. Hornor & Co., 580 S.W.2d 401 (Tex.Civ. App.San Antonio 1979, writ ref'd n.r.e.); see also Olshan Lumber Co. v. Bullard, 395 S.W.2d 670 (Tex.Civ.App.Houston [1st Dist.] 1965, no writ). We conclude that a reasonably diligent inquiry would have fairly included an attempt to contact appellee, and that the evidence is sufficient to support the trial court's finding that appellant had "actual notice" of the assignment.
Appellant's first two points of error are overruled.
Appellant states in its third point of error that there is no evidence or "insufficient evidence as a matter of law" to support the finding that Pennington had actual authority to execute the letter delivered to appellee. The scope of an agent's authority is a question of fact that may be proved with circumstantial evidence. Grundmeyer v. McFadin, 537 S.W.2d 764 (Tex.Civ. App.Tyler 1976, writ ref'd n.r.e.).
The record shows that Pennington was given broad authority by appellant. Pennington's contract of employment with appellant gave him extensive discretion in conducting all aspects of sales. Pennington testified that he was both appellant's sales manager and its sole salesman, and that he was the only agent of appellant who dealt with K & K when the purchase order agreement for $327,000 was made. The testimony also reflects that Pennington had general authority to request, sign, and deliver checks. Clara Olson testified that if a name that was supposed to be listed on a check was not contained in the corresponding purchase order, she would refer the matter to Pennington, her supervisor. This evidence, considered in its entirety, is sufficient to support the finding that Pennington had actual, and not merely apparent, authority to execute the letter.
Appellant's third point of error is overruled.
Appellant states in its fourth point of error that there is no evidence or "insufficient *49 evidence as a matter of law" to support the finding that appellee incurred $3,500 in reasonable and necessary attorney's fees. Appellant cites no authority and employs scant argument in support of his contention. Appellee's attorney testified, without dispute or objection, that appellee had incurred $4,235 in reasonable attorney's fees. This testimony is sufficient to support the court's finding. Appellant's fourth point of error is overruled.
The judgment is affirmed.
|
435 F.2d 1282
UNITED STATES of America, Appellee,v.Earnest Dean SANDERS, Appellant.
No. 279-70.
United States Court of Appeals, Tenth Circuit.
December 22, 1970.
Hubert H. Bryant, Asst. U. S. Atty., Tulsa, Okl. (Nathan G. Graham, U. S. Atty., and Robert P. Santee, Asst. U. S. Atty., Tulsa, Okl., on the brief), for appellee.
William C. Boston, Jr., Oklahoma City, Okl., for appellant.
Before PICKETT, BREITENSTEIN and SETH, Circuit Judges.
PICKETT, Circuit Judge.
1
This is a direct appeal from a sentence entered after a plea of guilty by appellant Sanders to a 2-count indictment charging him and others with conspiring to violate 21 U.S.C. § 174, and 26 U.S.C. §§ 4705(a) and 7237(b), relating to the possession, distribution and sale of narcotic drugs. The sole contention presented is whether the plea of guilty is void because the sentencing court did not comply with the provisions of Rule 11, Federal Rules of Criminal Procedure, prior to accepting the guilty plea.
2
When Sanders appeared before the court for arraignment on March 12, 1970, an assistant United States attorney advised him that both counts of the indictment involved a conspiracy to sell and facilitate the sale of narcotics. Under questioning by the same attorney, Sanders stated that he understood the charges and the possible consequences of a conviction and was entering his plea of guilty voluntarily. The court then explained the possible sentences under the statute, but made no inquiry as to Sanders' knowledge and understanding of the nature of the charges against him. It was developed that Sanders was an addict but had not received money from any sale of narcotics. Several weeks later at the sentencing proceedings the presentence report of the probation officer indicated that Sanders was a longtime drug addict and "that he entered into the cooperative scheme to satisfy his habit," and that Sanders' function in the scheme charged was to act as liaison between prospective customers and the source of narcotics supply.
3
Rule 11 provides that the court shall not accept a plea of guilty or a plea of nolo contendere "without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." Although the court explained to Sanders the consequences of the plea, no reference whatever was made to the nature of the charge.
4
The purpose of Rule 11 was recently discussed by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), under circumstances strikingly similar to those here presented. McCarthy appeared before the sentencing court with retained counsel who stated that he had informed McCarthy of the consequences of a plea of guilty and requested permission to withdraw a not guilty plea and enter a plea of guilty. The district judge inquired of McCarthy if he understood that a guilty plea waived his right to a jury trial and subjected him to five years' imprisonment and a $10,000 fine. McCarthy stated that he understood the consequences and wanted to plead guilty. He further stated to the court that the plea was not the result of threats or promises. The plea was accepted and sentence pronounced. The Supreme Court rejected the government's argument that the requirements of Rule 11 can be satisfied although the district judge does not personally inquire whether the defendant understands the nature of the charge, and held that a defendant is entitled to plead anew if the Rule 11 procedure is not fully adhered to.
5
The clear purpose of Rule 11, as stated in the McCarthy case, was to assist the sentencing judge in making the constitutionally required determination that the plea is voluntary. Before accepting a plea of guilty or nolo contendere the burden is placed upon the judge to address the defendant in person and make certain from inquiry and explanation that the plea is made voluntarily and that the accused understands the nature of the charges and also the consequences of the plea.1 See Holt v. United States, 435 F.2d 1278 (10th Cir. 1970). A further purpose of this strict requirement is to produce a complete record at the time of the plea of necessary facts relative to the determination of the voluntariness of the plea.2 Applying the McCarthy standards, the mandatory provisions of Rule 11 were not satisfied.
6
The judgments and sentences are reversed and the case remanded with instructions to vacate the plea of guilty and permit the defendant to plead anew.
Notes:
1
InMcCarthy, supra, 472, 89 S.Ct. 1174, 22 L.Ed.2d 418, the Court stated:
"It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking."
2
With reference to the purpose of Rule 11, the Supreme Court, inMcCarthy, supra, 466, 467, 89 S.Ct. 1171, 22 L.Ed. 2d 418, said:
"These two purposes have their genesis in the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be `an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 82 L.Ed. 1461] (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.
* * * * *
"To the extent that the district judge thus exposes the defendant's state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea's voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to `assumptions' not based upon recorded responses to his inquiries. * * *"
|
[Cite as State v. Shugart, 2011-Ohio-6218.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 09 MA 215
)
JEFFREY SHUGART, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CR567
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Mark Verkhlin
839 Southwestern Run
Youngstown, Ohio 44514
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
-2-
Dated: November 29, 2011
[Cite as State v. Shugart, 2011-Ohio-6218.]
DONOFRIO, J.
{¶1} Defendant-appellant, Jeffrey Shugart, appeals from a Mahoning County
Common Pleas Court judgment convicting him of one count of aggravated assault
following a jury trial.
{¶2} In the late hours of May 19, 2009, Arnold Shiflett, accompanied by
Lawrence Sinkfield, David Shovlin, and Amanda Erck, went to Derrick Duvall’s house
to borrow a tire iron to fix a flat tire. Duvall is Shiflett’s uncle and next-door neighbor.
At the time, appellant had been staying with Duvall for approximately one week.
{¶3} Appellant answered the door and told Shiflett that Duvall did not want
any company. The two exchanged words. Shiflett entered the house. A fight then
ensued between the two men. Sinkfield entered the house too and became involved
in the affray. Appellant ended up on the ground and grabbed a knife. By this time,
Duvall had entered the room and attempted to break up the fight. During the
struggle, appellant stabbed Duvall in the arm and stabbed Sinkfield in the stomach.
{¶4} A Mahoning County Grand Jury indicted appellant on four counts of
felonious assault, two counts in violation of R.C. 2903.11(A)(2)(D) and two counts in
violation of R.C. 2903.11(A)(1)(D), all second-degree felonies.
{¶5} The case proceeded to trial where the jury found appellant not guilty of
the felonious assault counts. However, the jury did find appellant guilty of the lesser
included offense of aggravated assault of Lawrence Sinkfield, in violation of R.C.
2903.12(A)(1), a fourth-degree felony. The trial court subsequently sentenced
appellant to 14 months in prison.
{¶6} Appellant filed a timely notice of appeal on December 23, 2009.
{¶7} Appellant now raises one assignment of error, which states:
{¶8} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN,
AFTER A JURY TRIAL, IT FOUND DEFENDANT-APPELLANT, JEFFREY
SHUGART[,] GUILTY OF AGGRAVATED ASSAULT IN VIOLATION OF R.C.
2903.12(A)(2) [sic.] BEYOND A REASONABLE DOUBT, WHEN SUCH A
CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶9} Appellant argues here that the manifest weight of the evidence does not
support his conviction. Appellant contends that the evidence showed that Sinkfield
-2-
forced his way into the house and began to punch him in the face. He asserts that
the evidence demonstrated that he acted in self-defense when he stabbed Sinkfield.
{¶10} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. State v.
Thompkins (1997), 78 Ohio St.3d 380, 387. “Weight of the evidence concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other.’” Id. (Emphasis sic.) In making its
determination, a reviewing court is not required to view the evidence in a light most
favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
{¶11} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio
App.3d 172, 175. This is because determinations of witness credibility, conflicting
testimony, and evidence weight are primarily for the trier of the facts who sits in the
best position to judge the weight of the evidence and the witnesses’ credibility by
observing their gestures, voice inflections, and demeanor. State v. Rouse, 7th Dist.
No. 04-BE-53, 2005-Ohio-6328, at ¶49, citing State v. Hill (1996), 75 Ohio St.3d 195,
205; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
Thus, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province
to choose which one we believe.” State v. Dyke, 7th Dist. No. 99-CA-149, 2002-
Ohio-1152.
{¶12} The jury convicted appellant of aggravated assault in violation of R.C.
2903.12(A)(1), which provides:
{¶13} “(A) No person, while under the influence of sudden passion or in a
sudden fit of rage, either of which is brought on by serious provocation occasioned by
-3-
the victim that is reasonably sufficient to incite the person into using deadly force,
shall knowingly:
{¶14} “(1) Cause serious physical harm to another[.]”
{¶15} We must consider all of the evidence presented at trial to determine
whether appellant's conviction was supported by the manifest weight of the evidence.
{¶16} The first witness to testify was Arnold Shiflett, Derrick Duvall’s nephew.
On the day in question Shiflett was living at his grandmother’s house, which is next
door to Duvall’s house. He stated that he needed to borrow a tire iron to fix a flat tire,
so he called his uncle’s house that evening. (Tr. 195-96). Appellant answered the
phone and would not allow Shiflett to speak with Duvall. (Tr. 197). Shiflett told
appellant he was coming over. (Tr. 197). He was accompanied by Lawrence
Sinkfield, Amanda Erck, and David Shovlin. (Tr. 195). Shiflett testified that when he
got to Duvall’s house, appellant, who seemed angry and drunk, met him at the door.
(Tr. 199). Shiflett stated that appellant would not let him in the house, but while
appellant was yelling he walked right in. (Tr. 201-202). Shiflett stated that he and
appellant exchanged words and then appellant grabbed him by the neck and pushed
him into the wall. (Tr. 201). He testified that he did not hit, push, or grab appellant
first. (Tr. 229).
{¶17} A struggle then ensued between appellant and Shiflett. (Tr. 203).
Shiflett testified that Sinkfield came into the house and tried to break up the fight. (Tr.
204). Shiflett then noticed a black “flip” knife hit the ground, although he was unsure
where it came from. (Tr. 205-206). Shiflett stated that appellant stabbed Sinkfield in
the belly. (Tr. 207-208, 210). However, he stated he did not physically see the knife
go into Sinkfield’s belly. (Tr. 225). Shiflett stated that at some point Duvall came into
the room and appellant stabbed him in the arm, although he did not actually see the
knife go into Duvall’s arm. (Tr. 209-210, 225). He testified that appellant was on the
ground at the time making stabbing motions with the knife. (Tr. 209-210).
{¶18} Shiflett also testified that for the year that he had been living next door
to Duvall, he came and went from Duvall’s house ten times a day and Duvall never
told him that he was not welcome. (Tr. 198-99). He stated that he and Duvall have a
-4-
close relationship and he does not ask Duvall’s permission to go to his house. (Tr.
218).
{¶19} Amanda Erck, Shiflett’s girlfriend, testified next. She stated that on the
night in question she was with Shiflett, Sinkfield, and Shovlin. (Tr. 235). She stated
that Shovlin had a flat tire so the four went to Duvall’s house to borrow a tire iron.
(Tr. 235-36). When they arrived at Duvall’s house, Erck stated that she got out of the
car but did not go into the house. (Tr. 237). She stated that when Shiflett walked
into the house, she heard yelling and fighting. (Tr. 237). She said that Shiflett did
not push his way into the house, but merely walked around appellant. (Tr. 238).
Erck stated that Sinkfield went into the house to break up the fight. (Tr. 239). The
next thing she witnessed was screaming and then everyone ran out of the house.
(Tr. 240). Erck stated that appellant came up to her and told her he was sorry. (Tr.
242-43).
{¶20} Lawrence Sinkfield was the next witness. He stated that on the night in
question he went with Shiflett, Erck, and Shovlin to Duvall’s house to retrieve tools to
fix Shovlin’s flat tire. (Tr. 254). Sinkfield stated that appellant was at the door when
Shiflett went in. (Tr. 255). He stated that Shiflett did not push his way into the house.
(Tr. 255). Sinkfield stated that he followed Shiflett into the house. (Tr. 255). Once
Shiflett was inside, Sinkfield stated that Shiflett and appellant got into a verbal
argument, which resulted in appellant pushing Shiflett. (Tr. 256). He stated that the
two men then began to wrestle. (Tr. 256). When Sinkfield saw appellant grab Shiflett
by the neck, he tried to grab Shiflett and pull him towards the door. (Tr. 256-57).
Sinkfield testified that he tried to push appellant away. (Tr. 257). He stated that
appellant then fell to the ground and began searching for the steak knife that
Sinkfield had seen in appellant’s shirt pocket. (Tr. 258, 264). Sinkfield testified that
when appellant found the knife, he began to swing it. (Tr. 258). He then noticed that
Duvall was bleeding. (Tr. 258). Next, he realized that he was bleeding from his side.
(Tr. 259).
{¶21} Derrick Duvall, Shiflett’s uncle and appellant’s friend, testified next. On
the night at issue, Duvall stated that he was at home with Bridgette White, appellant,
-5-
and his daughter. (Tr. 280). Appellant had been staying at Duvall’s house for a
couple of days. (Tr. 281). Duvall told appellant he did not want anyone in the house
and then he went to bed. (Tr. 280-81). White was also in bed. (Tr. 280-81). Duvall
stated that while he was in bed, he heard arguing. (Tr. 282). When he went to see
what was going on, Duvall saw appellant, Shiflett, and Sinkfield fighting. (Tr. 283).
He testified that he went to break up the fight and got stabbed in the arm. (Tr. 283).
Duvall stated that he did not believe that appellant stabbed intentionally. (Tr. 288-
89). He believed that it was an accident. (Tr. 288).
{¶22} Duvall also testified that Shiflett had been to his house “quite a few”
times. (Tr. 282). The only time Duvall did not permit Shiflett at his house was when
he was drinking. (Tr. 282). When asked whether Shiflett had permission to be in his
house, Duvall answered, “No. But he’s my nephew, I mean.” (Tr. 292).
{¶23} Bridgette White, Duvall’s girlfriend, was the next witness. She testified
that she was asleep in Duvall’s house on the night in question when she awoke to
the sound of yelling. (Tr. 298-99). She went to the back door and saw a bunch of
people and Duvall told her to call the police. (Tr. 299-300).
{¶24} Youngstown Police Officer Robert DiMaiolo was the state’s final
witness. He responded to a call of a stabbing at Duvall’s house. (Tr. 313). Officer
DiMaiolo saw appellant running behind the house and apprehended him. (Tr. 314).
Appellant told Officer DiMaiolo that he stabbed Duvall by accident. (Tr. 315).
{¶25} Appellant testified in his own defense. He stated that at the time in
question, he had been staying with Duvall for six or seven days. (Tr. 333). Appellant
testified that prior to May 19, while he was at Duvall’s house, people had been in the
house, his cell phone was stolen, and a gun was pulled on him. (Tr. 333-34). On the
night of May 19, appellant testified that Duvall told him he did not want any company
because he was going to lay down. (Tr. 336). Appellant stated that he was sitting at
the kitchen table when he noticed four people walking in the driveway. (Tr. 336-37).
He testified that all four came to the back door. (Tr. 337). Appellant told them that
Duvall was sleeping and did not want company. (Tr. 337-38).
-6-
{¶26} Appellant stated that Shiflett then told him to move out of the way and
pushed him as Shiflett tried to force his way into the house. (Tr. 338). Appellant
pushed him in response. (Tr. 338). At that time, appellant stated, Sinkfield started
punching him in the face. (Tr. 338). He testified that he fell to the floor where
Sinkfield choked and kicked him to the point where he began to lose consciousness.
(Tr. 339). Appellant then reached into the sink and grabbed a knife. (Tr. 340). At
that point, appellant stated, Duvall entered the room and he accidentally stabbed
Duvall in the arm. (Tr. 340).
{¶27} Appellant denied ever choking Shiflett. (Tr. 352). He further testified
that the only way to free himself from Sinkfield was to stab him. (Tr. 356). He
admitted that he did not see any weapons on Sinkfield or Shiflett, although he also
stated that he believed they might have had them. (Tr. 356, 362). Appellant also
admitted that when the police questioned him, he did not mention that Sinkfield and
Shiflett were beating him up. (Tr. 359).
{¶28} This evidence supports appellant's conviction. This case turns strictly
on credibility. There was no question that appellant argued and fought with Shiflett
and Sinkfield and that appellant stabbed Sinkfield. Instead, the only issue was
whether the events that led to the stabbing were as Sinkfield and Shiflett testified or
as appellant testified.
{¶29} Appellant asserts that the evidence proved that he acted in self-
defense. The affirmative defense of self-defense contains three elements. The
defendant must prove that he: (1) was not at fault in creating the situation that gave
rise to the fight; (2) had a bona fide belief that he was in imminent danger of death or
great bodily harm and that the use of force was his only means of escape; and (3) did
not violate any duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio
St.3d 247, 249, citing State v. Robbins (1979), 58 Ohio St.2d 74, at paragraph two of
the syllabus.
{¶30} As the testimony indicates, there are two versions regarding the events
on the night of May 19. Sinkfield’s and Shiflett’s version do not satisfy the elements
necessary to support self-defense. Their testimony indicated that appellant was at
-7-
fault in creating the situation and that appellant did not have a bona fide belief that he
was in imminent danger of death or great bodily harm. Appellant’s version, on the
other hand, could support a self-defense claim. His testimony indicated that he was
not at fault in creating the situation, he had a bona fide belief that he was in imminent
danger of great bodily harm, and his only means of escape from such danger was in
the use of force. Therefore, it became a credibility question for the jury to determine
which version of the events to believe.
{¶31} Although an appellate court is permitted to independently weigh the
credibility of the witnesses when determining whether a conviction is against the
manifest weight of the evidence, great deference must be given to the fact finders'
determination of witnesses' credibility. State v. Wright, 10th Dist. No. 03AP-470,
2004-Ohio-677, at ¶11. The policy underlying this presumption is that the trier of fact
is in the best position to view the witnesses and observe their demeanor, gestures,
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony. Id.
{¶32} In sum, we cannot find that the jury lost its way in finding appellant
guilty of aggravated assault. Their decision was based on their credibility
determination.
{¶33} Accordingly, appellant's sole assignment of error is without merit.
{¶34} For the reasons stated above, the trial court's judgment is hereby
affirmed.
Vukovich, J., concurs.
Waite, P.J., concurs.
|
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00215-CR
Salvador Simon, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-09-200600-A, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
In 2009, appellant Salvador Simon pleaded guilty to committing the misdemeanor
offense of attempted possession of a controlled substance and was placed on community supervision
for a period of two years. It is relevant to this appeal that Simon is an undocumented immigrant—he
was arrested by Immigration and Customs Enforcement (ICE) in 2016, detained without bond as a
result of his 2009 conviction, and subjected to removal proceedings.1 Simon subsequently filed an
application for writ of habeas corpus, challenging the legality of his 2009 conviction by asserting that
he had received ineffective assistance of counsel prior to pleading guilty. Following a hearing, the
district court denied relief. In two related points of error on appeal, Simon asserts that counsel had
“affirmatively misadvised” him of the immigration consequences of his guilty plea and that Simon
suffered prejudice as a result. We will affirm the order denying relief.
1
See 8 U.S.C. §§ 1182(a)(2)(A)(i), 1227(a)(2)(B)(i).
BACKGROUND
The record reflects that Simon had initially been charged with cocaine possession,
a felony offense. According to the arresting officer’s probable-cause affidavit, a copy of which was
attached to Simon’s habeas application, the cocaine had been found inside Simon’s vehicle during
a traffic stop, in a box of condoms located inside the glove box.
At the habeas hearing, Simon testified that prior to pleading guilty, he had spent
approximately three to four minutes talking to his appointed trial counsel, Antonio Wehnes.
According to Simon, Wehnes did not discuss the specific facts of the case with him. Simon also
claimed that he had told Wehnes that the cocaine did not belong to him and that Wehnes “didn’t ask
[him] anymore questions” after that.
A copy of the transcript of the plea hearing was attached to Simon’s habeas
application. The record reflects that during that proceeding, the following occurred:
[The court]: Are you Salvador Simon, who is charged in this case?
[Simon]: Yes.
[The court]: Do you understand you’re charged by indictment with possession of
a controlled substance, cocaine, in an amount of less then one gram?
[Simon]: Yes.
....
[The court]: The State has an election here?
[Prosecutor]: Yes, Your Honor. We’ll proceed on a lesser included, a misdemeanor
of attempted possession of a controlled substance.
[The court]: How do you plead to that lesser offense?
2
[Simon]: Guilty.
....
[The court]: Is your guilty plea given freely and voluntarily?
[Simon]: Yes.
[The court]: Is it?
[Interpreter]: He said yes.
[The court]: Okay. Do you understand the punishment range for a Class A
misdemeanor offense as it is set out in State’s Exhibit 1, the plea
papers I’m showing you?
[Simon]: Yes.
[The court]: Do you understand all of your rights and the waivers of rights as set
out in State’s Exhibit 1?[2]
[Simon]: No.
[Wehnes]: Let me try, Your Honor.
(Whereupon a conversation in Spanish occurred between defense counsel and
defendant.)[3]
[Simon]: Yes.
[The court]: Great. You do understand all of your rights and waivers of rights as
set out in State’s Exhibit 1?
2
State’s Exhibit 1, the plea agreement, included the following admonishment: “If you are
not a citizen of the United States of America, a plea of guilty or nolo contendere for this offense may
result in your deportation, your exclusion from admission to this country, or your denial of
naturalization under federal law.”
3
Simon testified that during this conversation, Wehnes had told him that “when the Judge
asked me that I should say yes.” Simon also testified that Wehnes had told him “just to say yes to
everything” that the court asked.
3
[Simon]: Yes.
[The court]: Did you go over these rights and the waivers of rights in State’s
Exhibit 1 with your attorney, Mr. Wehnes?
[Simon]: Yes.
[The court]: And that was in the Spanish language, correct?
[Simon]: Yes.
[The court]: Mr. Wehnes, you speak English and Spanish, correct?
[Wehnes]: Yes, Judge.
....
[The court]: What is the recommendation?
[Prosecutor]: One year of probation, two years of community supervision, pay all
fines and complete 100 hours of community service restitution,
restitution, pay $600 and complete counseling.
[The court]: Mr. Simon, is that your understanding of the agreement you’ve
reached in this case?
[Simon]: Yes.
[The court]: And have you discussed this agreement with Mr. Wehnes?
[Simon]: Yes.
[The court]: And you’re satisfied with the recommendation he has provided you
on this case?
[Simon]: Yes.
[The court]: And you’ve had sufficient time—well, he’s had sufficient time to
represent you?
[Simon]: Yes.
4
[The court]: I’ll follow the recommendation. I find you guilty of attempted
possession of a controlled substance, cocaine, in an amount of less
than one gram, a Class A misdemeanor. Do you have anything else
to say before we proceed with sentencing?
[Simon]: Can I leave the country, because I was about to depart for—
[The court]: Have you talked to him, Mr. Wehnes?
[Wehnes]: Yes. I told him to come talk to me this weekend.
[Simon]: Yeah, I’m going to talk to him.[4]
[The court]: I sentence you to confinement in jail for one year and a $600 fine.
The jail sentence is suspended. You’re now placed on community
supervision for two years. . . . Do you have any questions?
[Simon]: No.
[The court]: Okay. Good luck to you, Mr. Simon.
Simon testified that he had pleaded guilty because Wehnes had told him that if he pleaded guilty,
then he “wouldn’t go to jail.” Simon further testified that Wehnes had told him “that it was all going
to work out.” On cross-examination, Simon acknowledged that at the time of his plea, he wanted
to avoid a jail sentence. Additionally, when the State asked Simon if he was “happy that [he] got
probation on this case on a misdemeanor instead of facing possible jail or a possible felony,” Simon
answered in the affirmative.
In an affidavit that was attached to his habeas application, Simon made additional
allegations, including that Wehnes knew at the time of the plea hearing that Simon was from Mexico
4
Simon testified that he did not talk with Wehnes that weekend or at any time following the
plea hearing.
5
and was not a United States citizen; that Wehnes “never mentioned immigration consequences” and
“never told [Simon] that [he] should consult with an immigration attorney”; and that “[n]either the
judge nor [Wehnes] warned [Simon] that this would bring [him] immigration problems.” Simon
also asserted that Wehnes’s failure to warn him of immigration consequences “led [him] to believe
that this agreement would not affect [his] immigration possibilities.”
Wehnes also testified at the habeas hearing. Wehnes recounted that when he was
assigned to Simon’s case, he knew that Simon was an undocumented immigrant and was aware of
the collateral consequences that apply to undocumented immigrants who are convicted of drug
crimes, including deportation. Although Wehnes did not have a specific recollection of the events
that occurred at Simon’s plea hearing, he was able to recall his standard procedure in similar plea-
bargain cases at the time. Wehnes explained that he would review with his Spanish-speaking clients
the rights and waivers specified in the plea paperwork, including the right to a jury trial and the
admonishment to non-citizens of the potential immigration consequences of a guilty plea.5 When
asked about Simon’s contentions that Wehnes had “told him to just say yes to whatever the Judge
tells him,” “didn’t explain anything to him,” and “didn’t answer his questions,” Wehnes testified,
“No, that does not sound right to me.” The State also elicited testimony from Wehnes that his
standard practice included informing his non-citizen clients that drug convictions had definite
immigration consequences:
Q: I want to ask you, the defendant says that you didn’t go over any of his
immigration consequences with him. I know you testified that you were
5
See supra n.2.
6
aware at the time of 2009, that any kind of drug case was a permanent severe
immigration consequence, correct?
A. Correct.
Q. Would you have gone over that with a client from Latin America?
A. Well, in the plea forms, it says “may” have consequences. I always say, you
are never going to be able to if it’s a drug case. The “may” I feel is totally
inappropriate in this type of plea.
Q. So you tell clients that there will be immigration consequences?
A. Totally.
At the conclusion of the habeas hearing, the district court denied relief and later made
findings of fact and conclusions of law, including that Simon’s testimony was not credible, that
Wehnes’s testimony was credible, and that counsel’s performance was not deficient. This appeal
followed.
STANDARD OF REVIEW
In reviewing a trial court’s decision to grant or deny habeas corpus relief, we view
the facts in the light most favorable to the trial court’s ruling and uphold that ruling absent an abuse
of discretion.6 A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without
reference to any guiding rules or principles.7 We are not to reverse the trial court’s ruling unless
6
See Ex parte Gill, 413 S.W.3d 425, 428 (Tex. Crim. App. 2013); Ex parte Wheeler,
203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex.
App.—Austin 2012, pet. ref’d).
7
State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016); Ali, 368 S.W.3d at 830.
7
the decision “is so clearly wrong as to lie outside that zone within which reasonable persons
might disagree.”8
“An applicant for a post-conviction writ of habeas corpus bears the burden of proving
his claim by a preponderance of the evidence.”9 In habeas corpus proceedings, “[v]irtually every fact
finding involves a credibility determination” and “the fact finder is the exclusive judge of the
credibility of the witnesses.”10 Thus, we are to afford almost total deference to a trial court’s factual
findings when supported by the record, especially when those findings are based upon credibility and
demeanor.11 We afford the same amount of deference to the trial court’s application of the law to
the facts, to the extent that the resolution of the ultimate question turns on an evaluation of credibility
and demeanor.12
ANALYSIS
In two related points of error, Simon asserts that he received ineffective assistance
of counsel prior to pleading guilty and that the district court abused its discretion in denying habeas
8
Balderas v. State, 517 S.W.3d 756, 798 (Tex. Crim. App. 2016); Robisheaux v. State,
483 S.W.3d 205, 217 (Tex. App.—Austin 2016, pet. ref’d).
9
Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016) (citing Ex parte Richardson,
70 S.W.3d 865, 870 (Tex. Crim. App. 2002)).
10
Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996); Ali, 368 S.W.3d at 830.
11
Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011).
12
Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled
in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).
8
relief for that reason.13 The two-part Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel.14 Under the first prong of the test, “a habeas
applicant must show, by a preponderance of the evidence, that ‘counsel’s performance was
deficient.’”15 In other words, “[t]he applicant must show that counsel’s performance failed to satisfy
an objective standard of reasonableness under prevailing professional norms.”16 “A reviewing court
must assess reasonableness under the circumstances of the particular case ‘viewed as of the time of
counsel’s conduct.’”17 “The presumption is that counsel ‘rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.’”18 “An applicant who
cannot overcome this presumption by a preponderance of the evidence will not succeed in his Sixth
Amendment claim.”19
Under the second prong of the Strickland test, the applicant “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”20 “A reasonable probability is a probability sufficient to undermine
13
See U.S. Const. amend. VI.
14
Hill v. Lockhart, 474 U.S. 52, 57–59 (1985) (citing Strickland v. Washington, 466 U.S. 668,
687–88, 694 (1984)); Ali, 368 S.W.3d at 830.
15
Ex parte Bowman, 533 S.W.3d 337, 349 (Tex. Crim. App. 2017) (quoting Strickland,
466 U.S. at 687; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)).
16
Id. at 349–50.
17
Id. at 350 (quoting Strickland, 466 U.S. at 688, 690).
18
Id.
19
Id.
20
Strickland, 466 U.S. at 694.
9
confidence in the outcome.”21 “In the context of a collateral challenge to a guilty plea, the focus of
the prejudice inquiry is on ‘whether counsel’s constitutionally ineffective performance affected the
outcome of the plea process,’ and on whether a defendant has shown that ‘but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.’”22
Deficient performance
Simon’s specific complaint on appeal is that Wehnes “affirmatively misadvised” him
of the immigration consequences of his guilty plea. “In Padilla v. Kentucky, the Supreme Court held
that the Sixth Amendment requires an attorney for a criminal defendant to advise his client of the
risk of ‘automatic’ deportation as a consequence of a guilty plea.”23 “But Padilla announced a new
rule, so it does not apply retroactively to the collateral review of a state criminal conviction that was
final when the Padilla opinion was issued in 2010.”24 Because Simon’s conviction became final in
2009, Padilla does not apply here.25
However, the Court of Criminal Appeals has recently held, consistent with United
States Supreme Court precedent, that a defendant whose conviction became final prior to Padilla
may nonetheless bring a claim that his trial counsel “affirmatively misadvised” him of the
21
Id.
22
Torres, 483 S.W.3d at 43 (quoting Hill, 474 U.S. at 59).
23
State v. Guerrero, 400 S.W.3d 576, 587 (Tex. Crim. App. 2013) (citing 559 U.S. 356,
367–68 (2010)).
24
Id. (citing Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013)).
25
See De Los Reyes, 392 S.W.3d at 679 (citing Chaidez v. United States, 568 U.S. 342, 358
(2013)).
10
immigration consequences of his guilty plea.26 In other words, even prior to Padilla, “when [an]
attorney rendered immigration advice, which he was under no obligation to render, he had a duty to
state the law correctly.”27 Stating the law incorrectly, i.e., providing “affirmative misadvice,” may
give rise to a cognizable claim for ineffective assistance of counsel independent of Padilla.28
As an initial matter, the State argues that Simon waived his “affirmative misadvice”
claim in the court below. At the beginning of the habeas hearing, the State and the district court
asked Simon to clarify the nature of his complaint. The record reflects that the following occurred:
[State]: I just wanted to clarify with the Applicant. I believe that the two
grounds that were raised in the writ was that trial counsel didn’t
explain immigration consequences and that trial counsel didn’t talk
about the possible illegal search [of Simon’s vehicle29].
26
See Ex parte Garcia, 547 S.W.3d 228, 2018 Tex. Crim. App. LEXIS 132, at *4–5 (Tex.
Crim. App. May 9, 2018) (citing Lee v. United States, 137 S. Ct. 1958 (2017)).
27
See id.
28
See id. (citing Ex parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012);
State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991)).
29
In his habeas application and at the hearing, Simon also argued that counsel was
ineffective for failing to file a motion to suppress the cocaine that was found in the vehicle’s glove
box following Simon’s arrest. See Arizona v. Gant, 556 U.S. 332, 351 (2009) (restricting scope of
automobile searches incident to arrest to areas of vehicle that are “within reaching distance” of
arrestee). To the extent that Simon has carried forward this argument on appeal, we observe, as did
the court below, that Gant was decided after Simon had pleaded guilty, and it is well established that
counsel should not be declared ineffective when counsel’s claimed error is based on unsettled law.
See, e.g., State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013); Ex parte Chandler,
182 S.W.3d 350, 358–59 (Tex. Crim. App. 2005); Ex parte Welch, 981 S.W.2d 183, 184 (Tex. Crim.
App.1998); see also Ex parte Martinez, No. 03-15-00334-CR, 2016 Tex. App. LEXIS 9905, at *8–9
(Tex. App.—Austin Aug. 31, 2016, no pet.) (mem. op., not designated for publication) (“Although
‘[i]gnorance of well-defined general laws, statutes and legal propositions is not excusable and such
ignorance may lead to a finding of constitutionally deficient assistance of counsel,’ the ‘specific legal
proposition must be “well considered and clearly defined.”’” (quoting Chandler, 182 S.W.3d
11
My understanding today is, that what we’re really going to focus on
is counsel’s investigation or discussion of defenses and not whether
or not he advised his client about immigration consequences. I just
want to get that on the record. Is that true that that’s the ground we
are here for?
[Simon]: That’s correct.
[State]: So it’s not a Padilla claim? It’s not an immigration claim anymore?
[The court]: So it has nothing to do with Padilla, particularly, with not so much
the failure to go over with him immigration consequences. I think the
record in that respect speaks for itself.
But with respect to any misadvice that was given to him that is not
reflected in the record, is that something that you want to go over
here?
[Simon]: Your Honor, really the only way immigration, which is a collateral
consequence, plays into this is that that’s the reason he is here. He
waited seven years only because it was when immigration picked him
up on a separate matter that it was put in his face that he had a drug
conviction. So it’s a permanent infirmity for immigration to have a
drug crime. He can never immigrate and he is permanently barred
from this country. So now that’s a collateral consequence that Mr.
Wehnes, because it was pre-Padilla, didn’t have the duty to explain
immigration consequences. But immigration does play into why he
is here today.
[The court]: Okay. You can proceed how you would like to, and then I’ll take up
all of the issues as they arrive.
At no point during the habeas hearing did Simon argue that Wehnes had “affirmatively misadvised”
him of the immigration consequences of his guilty plea. Additionally, at the conclusion of the
hearing, the district court stated that although “the original writ was really about whether or not
at 358)).
12
[Simon] was given immigration warnings and told of immigration consequences,” the court
was “not going to address that because you’ve withdrawn that issue.” Simon did not object to the
district court’s decision. Accordingly, we agree with the State that Simon waived this issue in the
court below.30
Moreover, even if the issue had been preserved, we could not conclude on this record
that the district court abused its discretion in failing to find that Wehnes had “affirmatively
misadvised” Simon. As discussed above, “affirmative misadvice” claims apply to cases in which
counsel misstated the law.31 The district court would not have abused its discretion in finding that
Wehnes made no such misstatements, at least none that were reflected in the record. In contending
that Wehnes had affirmatively misadvised him, Simon places significance on Wehnes’s statement
during the plea colloquy that he had told Simon “to come talk to [him] this weekend” in response
to Simon asking the court if he could “leave the country.” However, as the State observes, “it is not
clear that this exchange had anything to do with immigration at all,” as Simon may have been
inquiring as to some matter other than immigration consequences, such as any travel restrictions that
he might face while on probation. But even if Simon’s question concerned the immigration
30
See Tex. R. App. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002);
Ex parte Roldan, 418 S.W.3d 143, 146 n.3 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
31
See, e.g., Lee, 137 S. Ct. at 1963 (defendant “repeatedly asked [counsel] whether he would
face deportation as a result of the criminal proceedings”; counsel advised defendant incorrectly that
“he would not be deported as a result of pleading guilty”); Garcia, 2018 Tex. Crim. App. LEXIS 132,
at *1 (“Garcia asked his attorney whether there would be adverse immigration consequences if he
took the plea offer because he was a lawful permanent resident, and counsel responded that he
‘would probably be okay’ and that ‘the charge would probably not result in deportation.’”); Ex parte
Arjona, 402 S.W.3d 312, 316 (Tex. App.—Beaumont 2013, no pet.) (counsel “volunteered advice”
to defendant on possible immigration consequences of pleading guilty).
13
consequences of his plea, it would not be outside the zone of reasonable disagreement for the district
court to have found that the above exchange suggested, at most, a failure to advise Simon of
immigration consequences. And again, any such failure would not have constituted ineffective
assistance of counsel prior to Padilla.32
Simon also places significance on his testimony that Wehnes had told him, during the
plea hearing, “that it was all going to work out.” It would not be outside the zone of reasonable
disagreement for the district court to have found that this statement was ambiguous and that Wehnes
was referring to something other than immigration consequences, such as Simon receiving probation
instead of a jail sentence if he pleaded guilty. Moreover, Wehnes testified that it was his standard
practice in similar plea-bargain cases to review with his Spanish-speaking clients the rights and
waivers specified in the plea paperwork, including the deportation consequences for non-citizens
convicted of drug crimes. The district court would not have abused its discretion in finding that
Wehnes had likely followed that practice in Simon’s case and had warned him of the immigration
consequences of his guilty plea. The district court found Wehnes’s testimony credible and Simon’s
testimony not credible, and we are to defer to those credibility determinations. Additionally, we
observe that in Simon’s affidavit, he stated that Wehnes “never mentioned immigration
consequences,” which is contrary to Simon’s claim that Wehnes had “affirmatively misadvised” him
of those consequences. We conclude that the record supports a finding by the district court that
Simon failed to prove by a preponderance of the evidence that Wehnes had “affirmatively
32
See De Los Reyes, 392 S.W.3d at 679.
14
misadvised” him of the immigration consequences of his guilty plea, and the district court would not
have abused its discretion in denying Simon’s habeas application for that reason.33
Prejudice
The district court also would not have abused its discretion in finding that Simon had
failed to prove prejudice. Again, “when a defendant claims that his counsel’s deficient performance
deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by
demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.’”34 Stated another way, he “must convince the court
that a decision to reject the plea bargain would have been rational under the circumstances.”35
“Courts should not upset a plea solely because of post hoc assertions from a defendant about how
he would have pleaded but for his attorney’s deficiencies.”36 “Judges should instead look to
contemporaneous evidence to substantiate a defendant’s expressed preferences.”37 Factors to
consider in the analysis include “the evidence supporting an applicant’s assertions, the likelihood
33
See Roldan, 418 S.W.3d at 147–48; see also Ex parte Brumant, No. 14-15-00337-CR,
2015 Tex. App. LEXIS 10490, at *10–11 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, pet.
ref’d) (mem. op., not designated for publication) (rejecting similar affirmative-misadvice claim);
Ex parte Tavakkoli, No. 09-13-00082-CR, 2013 Tex. App. LEXIS 11989, at *18–20 (Tex.
App.—Beaumont Sept. 25, 2013, pet. ref’d) (mem. op., not designated for publication) (same).
34
Lee, 137 S. Ct. at 1965 (quoting Hill, 474 U.S. at 59).
35
Padilla, 559 U.S. at 372 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)).
36
Lee, 137 S. Ct. 1967.
37
Id.
15
of his success at trial, the risks the applicant would have faced at trial, the benefits received from the
plea bargain, and the trial court’s admonishments.”38
Initially, we observe that the record reflects that Simon was an undocumented
immigrant at the time of his plea hearing. Therefore, unlike the defendants in Padilla and Lee, who
were lawful permanent residents at the time of their hearings and thus not subject to deportation until
after they had pleaded guilty, Simon could have been deported even if he had gone to trial and been
acquitted.39 The district court would not have abused its discretion in finding that Simon’s status as
an undocumented immigrant who was already subject to removal made it less likely that the
“prospect of removal” would “reasonably have affected his decision to . . . plead guilty.”40
Moreover, it would not have been outside the zone of reasonable disagreement for
the district court to have found that Simon’s likelihood of success at trial was low. Although Simon
claimed that the cocaine that was found in his vehicle did not belong to him, the arresting officer’s
probable-cause affidavit indicated that “Simon was the only occupant of the vehicle and had care,
custody, and control of the vehicle” at the time the officer had found cocaine inside the glove box.
Also, Simon had been charged with cocaine possession, a felony offense. If convicted, Simon would
have faced up to two years in state jail and a $10,000 fine.41 But because of the plea agreement, the
38
Torres, 483 S.W.3d at 48.
39
See Guerrero, 400 S.W.3d at 588–89 (concluding that even if defendant, an undocumented
immigrant, had “gone to trial . . . and been acquitted[,] he would not have been transformed into a
legal resident”; instead, [h]e could have been deported immediately after walking out of the criminal
courthouse”).
40
See id. at 589.
41
See Tex. Penal Code § 12.35.
16
charge was reduced to a misdemeanor and Simon was placed on community supervision instead of
serving jail time. Simon testified at the habeas hearing that he wanted to avoid a jail sentence at the
time he pleaded guilty, and when the State asked Simon if he was “happy that [he] got probation on
this case on a misdemeanor instead of facing possible jail or a possible felony,” Simon answered in
the affirmative. Additionally, Wehnes testified that in his experience, at the time of Simon’s plea
hearing, immigration officials “were deporting people all the time when they reported to probation
on a felony,” but “if you were able to get out of the Courthouse with a misdemeanor, probation
would not report you to immigration.” Thus, the district court would not have abused its discretion
in finding that in addition to avoiding jail time, another benefit of the plea bargain was the possibility
that Simon would not be reported to immigration officials at that time.
In summary, as an undocumented immigrant, Simon was already subject to
deportation even before he pleaded guilty, which would support a finding by the district court that
the risk of deportation would not reasonably have affected Simon’s plea decision. The record would
also support findings by the district court that Simon’s likelihood of success at trial was low, that the
risks Simon would have faced at trial were significant, and that the benefits Simon received from
the plea bargain were substantial. Accordingly, it would not have been outside the zone of
reasonable disagreement for the district court to have found that Simon failed to prove, by a
preponderance of the evidence, that there was a reasonable probability that, but for counsel’s alleged
errors, he would not have pleaded guilty and would have insisted on going to trial.42 For this and
42
See Torres, 483 S.W.3d at 49–51; Guerrero, 400 S.W.3d at 588–89; Ex parte Luna,
401 S.W.3d 329, 335–36 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Ali, 368 S.W.3d at
840–41.
17
other reasons discussed above, we cannot conclude on this record that the district court abused its
discretion in denying Simon’s application for writ of habeas corpus.
We overrule Simon’s first and second points of error.
CONCLUSION
We affirm the district court’s order.
___________________________________
Bob Pemberton, Justice
Before Chief Justice Rose, Justices Pemberton and Goodwin
Affirmed
Filed: July 19, 2018
Do Not Publish
18
|
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-3065
v. District of Kansas
JO RG E RIO S-G A RC IA , (D.C. No. 05-CV-3255-KHV)
Defendant-Appellant.
OR DER *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Jorge Rios-Garcia, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) that would allow him to appeal from the district court’s
order denying his habeas corpus petition under 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B). Because we conclude that M r. Rios-Garcia has failed to make “a
substantial show ing of the denial of a constitutional right,” we deny his request
for a COA and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
On December 4, 2002, a grand jury indicted M r. Rios-Garcia on one count
of conspiracy to distribute more than 5 kilograms of cocaine, more than 500
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
grams of methamphetamine, and more than 50 kilograms of marijuana in violation
of 21 U.S.C. § 846. Thereafter, the government properly filed a notice of prior
conviction under 21 U.S.C. § 851, which served to raise the statutory mandatory
minimum sentence on the charge to twenty years. M r. Rios-Garcia made no
objections to the § 851 filing. On January 14, 2004, M r. Rios-Garcia pleaded
guilty, signing a plea agreement that waived his right both to direct appeal and to
collateral attack under 28 U.S.C. § 2255. Five months later, the district court
sentenced M r. Rios-Garcia to twenty years imprisonment. He did not file a direct
appeal, but on June 9, 2005, he moved to vacate his sentence under § 2255. The
District Court overruled that motion and denied a subsequent motion for a COA.
The denial of a motion for relief under 28 U.S.C. § 2255 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, a petitioner must demonstrate that “reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. M cDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation
marks omitted).
Petitioner makes no substantial showing of constitutional error. In his
district court § 2255 filing, M r. Rios-G arcia made four arguments: (1) that his
-2-
counsel was ineffective because the attorney threatened M r. Rios-Garcia and
failed to advise him of the right to appeal the § 851 information; (2) that his plea
was involuntary; (3) that his sentence enhancement for being a “manager” under
the United States Sentencing Guidelines § 3B1.1(b) violated Blakely v.
Washington, 542 U.S. 296 (2004); and (4) that the Court’s doubling of the
statutory minimum sentence under 21 U.S.C. § 851 by the use of a prior
conviction more than ten years old violated Blakely and Shephard v. United
States, 544 U.S. 13 (2005). W e find that all of these claims are barred by his
waiver of the right to appeal or collaterally attack his sentence.
“A defendant’s knowing and voluntary waiver of the statutory right to
appeal and to collaterally attack his sentence is generally enforceable.” United
States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003) (internal quotation
marks omitted). W e determine w hether such waivers are enforceable under a
three-prong analysis: (1) whether the disputed appeal falls within the scope of the
waiver, (2) whether the defendant knowingly and voluntarily waived his appellate
rights, and (3) w hether enforcing the waiver w ill result in a miscarriage of justice.
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). Because
the elements of that test are not satisfied here, the waiver is valid and collateral
attack is impermissible.
The first prong of the Hahn analysis is not in dispute. M r. Rios-Garcia’s
appellate waiver includes language “voluntarily waiv[ing] any right to appeal or
-3-
collaterally attack” his sentence, “including, but not limited to, a motion brought
under Title 28, U.S.C. § 2255.” R. Vol. 1, Doc. 211, at 5-6. Even after
recognizing our responsibility to resolve any ambiguities in favor of the
defendant, we find that the plain language of the agreement clearly precludes the
type of appeal presented here. Hahn, 359 F.3d at 1343.
Under the second prong, the defendant must show that his plea agreement
was not knowing and voluntary. To determine voluntariness, we look to the
language of the plea agreement and the Rule 11 colloquy. Id. at 1325. In the
agreement itself, the defendant averred that he had read and understood the plea
agreement, and that he was entering into it freely and voluntarily. He said the
same at the colloquy.
M r. Rios-Garcia claims, however, that the plea as a whole — including the
waiver — is invalid because he did not understand several elements of the plea:
the § 851 enhancement and the elements of the offense to which he was pleading
guilty. As to the § 851 enhancement, M r. Rios-G arcia registered no objection to
the § 851 notice when it was filed, nor does he now claim that the information
contained in it is inaccurate. An affidavit from M r. Rios-Garcia’s trial counsel
states that he explained several times the meaning of the § 851 notice, and that it
would lead to a twenty-year mandatory minimum sentence. The plea petition,
which the defendant also signed, acknowledged that M r. Rios-Garcia would be
-4-
facing a mandatory minimum sentence of twenty years imprisonment, a sentence
triggered by the § 851 enhancement.
M r. Rios-Garcia’s claim that he was not informed of the elements of the
offenses to which he was pleading is equally meritless. The plea agreement itself
laid out the elements of the charge, namely “conspiracy to distribute more than
five kilograms of a mixture or substance containing a detectable amount of
cocaine, a Schedule II controlled substance, and more than fifty kilograms of
marijuana, a Schedule I controlled substance.” R. Vol. 1., Doc. 211, at 1. M r.
Rios-G arcia’s belated disavowal of knowledge and understanding of the plea is
unfounded.
Finally, we must determine whether enforcing the waiver will result in a
miscarriage of justice. W e have identified four such occasions: “[1] where the
district court relied on an impermissible factor such as race, [2] where ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4]
where the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327. Factors one,
three, and four are inapposite here. M r. Rios-Garcia does allege the second
prong, ineffective assistance of counsel. To show ineffective assistance,
appellant must demonstrate (1) that the performance of counsel was deficient, and
(2) a reasonable probability that, but for counsel’s errors, the result of the
-5-
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
694 (1984).
Petitioner’s § 2255 petition alleges three errors by counsel, none of which
is sufficient to meet the Strickland standard. First, M r. Rios-Garcia argues that
counsel was deficient in trial preparations, because his attorney relied on
summaries of wiretapped conversations rather than listening to the conversations
themselves. He alleges no prejudice stemming from that behavior, however, and
thus we cannot find it to be a Sixth Amendment violation. Second, he alleges that
he was pressured into pleading guilty. He claims that his attorney constantly told
him in a threatening tone, “If you don’t sign the plea agreement, you have to go to
trial!” and made frequent mention of the possibility of a life sentence. Such
statements cannot be considered threats, however, given that they are both
truthful and beyond defense counsel’s ability to influence. If counsel was trying
to impress on M r. Rios-Garcia the gravity of the decision that faced him, so much
the better. Third, petitioner alleges that his counsel was deficient in failing to
inform him that he could appeal the § 851 information. The Supreme Court held
in Roe v. Flores-Ortega, 528 U.S. 470 (2000), that counsel must inform a
defendant of his right to appeal only if counsel has “reason to think either (1) that
a rational defendant would w ant to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.” Id. at 480. Counsel
-6-
apparently did not inform M r. Rios-Garcia of his right to appeal the § 851
information, but petitioner gave no indication that he wished to appeal, and
counsel had no reason to think there were nonfrivolous grounds for doing so.
M oreover, M r. Rios-Garcia even now makes no claims that the information
contained in the § 851 information is inaccurate. H e does claim that his
conviction should not have been used for § 851 purposes because it is more than
ten years old, but such an argument is not supported by the plain language of §
851(a), and therefore we can find no prejudice. W e thus find no ineffective
assistance of counsel, no miscarriage of justice, and no reason to set aside
petitioner’s waiver of appeal and collateral attack.
There is no room for “reasonable jurists [to] debate” whether the § 2255
petition and the COA should have been resolved in a different manner. Slack,
529 U.S. at 483–84. Accordingly, we DENY M r. Rios-Garcia’s request for a
COA and DISM ISS this appeal.
Petitioner also moves to proceed in form a pauperis. The district court
denied the motion without prejudice, noting that while M r. Rios-Garcia met the
financial criteria for the motion, he had not provided a proper accounting of the
issues to be presented on appeal. M r. Rios-Garcia has since remedied that flaw ,
and we find his claims to be in good faith. Fed. R. App. P. 24(a)(4)(B). His
-7-
motion to proceed in form a pauperis is GR ANTED .
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
-8-
|
FILED
United States Court of Appeals
Tenth Circuit
July 28, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
MONICA WHITE,
Plaintiff-Appellant,
v. No. 10-1481
(D.C. No. 1:08-CV-01874-MSK-KMT)
EDWARD T. SCHAFER, Secretary, (D. Colo.)
United States Department of
Agriculture,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
Monica White, a former employee of the National Forest Service, appeals
from the district court’s entry of summary judgment in favor of the Secretary of
the United States Department of Agriculture, on her claims of sex discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
§§ 2000e to 2000e-17, and violations of the Privacy Act, 5 U.S.C. § 552a(b). 1 We
have reviewed the district court’s opinion and order de novo under the standards
set forth in Rule 56 of the Federal Rules of Civil Procedure 2 and affirm. 3
As a starting point, we commend the district court for its thorough and
well-reasoned published opinion and order granting the Secretary’s motion for
summary judgment. We also adopt and incorporate by reference its lengthy
recitation of the background facts pertaining to White’s claims. See White v.
Schafer, 738 F. Supp. 2d 1121, 1125-31 (D. Colo. 2010). Having carefully
considered the summary judgment record and the arguments advanced by White
on appeal, we affirm the district court’s decision for substantially the same
reasons it articulated. Id. at 1131-42.
Our analysis of the issues raised on appeal is limited. White is foreclosed
from asserting disparate treatment and retaliation claims under Title VII based on
the changes in her job responsibilities, about which she complained in January
2006. The district court explicitly found she had only exhausted the disparate
1
In the district court proceedings, White asserted an additional Privacy Act
claim under 5 U.S.C. § 552a(e)(10), but she has abandoned the claim on appeal.
See Aplt. Opening Br. at 18 n.7.
2
Following the entry of the district court’s opinion and order on September
7, 2010, Rule 56 of the Federal Rules of Civil Procedure was amended, effective
December 1, 2010. However, none of the amendments are material to the issues
in this appeal.
3
Our jurisdiction derives from 28 U.S.C. § 1291.
-2-
treatment and retaliation claims she made in her administrative Equal
Employment Opportunity (EEO) case, to wit: those related to the separate and
distinct changes in her job responsibilities which occurred in May 2006.
Id. at 1131-33. She has utterly failed, in either her opening or reply brief, to
challenge the district court’s ruling that her January 2006 disparate treatment and
retaliation claims had not been exhausted. See LifeWise Master Funding v.
Telebank, 374 F.3d 917, 927 n.10 (10th Cir. 2004) (holding appellant waived
right to appeal rulings of the district court it did not substantively address in its
opening brief). Specifically, she has made absolutely no showing regarding the
nature of the claims actually litigated in her EEO case, 4 and we decline to scour
the record in an attempt to discover those critical facts. Accordingly, like the
district court, we limit our analysis of White’s disparate treatment and retaliation
claims to “sex discrimination and retaliation, in the form of Mr. Yancey deciding
on [May] 22, 2006 to disregard the terms of the mediation agreement [entered
into on February 28, 2006] and assign her to more than 50% range work.” White,
738 F. Supp. 2d at 1133.
With regard to properly preserved and exhausted disparate treatment and
retaliation claims – the changes in White’s job responsibilities which occurred in
4
Although White has set forth arguments in her reply brief explaining why
her earlier claims based on changes in her job responsibilities are not time-barred,
see Aplt. Reply Br. at 12-14, she has not demonstrated the earlier claims were in
fact litigated in the EEO proceedings she commenced on May 25, 2006.
-3-
May 2006 – we adopt the reasoning of the district court. The decision to increase
White’s “range” duties was not an adverse employment action for purposes of
either her disparate treatment claim or her retaliation claim. Id. at 1133-36. Her
job duties historically included a significant amount of range work, so the
increase was not a significant or material change to the terms and conditions of
her employment.
White’s opening brief claims the corresponding decrease in her “wildlife”
duties made her less competitive for other job opportunities, but her argument
regarding lost job opportunities is based solely on several lines of conclusory
testimony in her EEO case. See Aplt. Opening Br. at 27 (citing Aplt. App.,
Vol. II at 437, p. 97:19-98:3).
With regard to her hostile work environment claim, we again agree with the
district court’s analysis of the allegedly discriminatory comments White
attributed to her supervisors and coworkers. See White, 738 F. Supp. 2d
at 1137-39. White failed to produce sufficient evidence demonstrating her
exposure to an “objectively” hostile work environment. Id. at 1139 (emphasis
omitted).
Finally, to support her Privacy Act claim, White relies on the deposition
testimony of Jack Neuman. See Aplt. Opening Br. at 57. However, as correctly
noted by the Secretary in his response brief, see Aplee. Br. at 57-58, Neuman’s
testimony does not establish that he “retrieved” White’s EEO Record of
-4-
Investigation from a “system of records” as required to establish a violation of the
Privacy Act, see 5 U.S.C. § 552a(a)(5) and (b). Further, even if “[t]he U.S.
Department of Agriculture [has] specifically identified employee complaints of
discrimination and investigation reports into those complaints as records it
maintains in a system of records . . .,” Aplt. Opening Br. at 57 (citing
7 C.F.R. § 1.123), White has nonetheless failed to point to specific record
evidence showing such a system of records existed for purposes of this case.
Simply put, as the district court explained, “[t]he requirement that the disclosed
record have been obtained from a ‘system of records’ is a specific, fact-based
inquiry that examines how the information was obtained in the particular
circumstances of the case,” White, 738 F. Supp. 2d at 1141, and White failed to
make such a specific showing.
AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
-5-
|
923 F.Supp. 1570 (1996)
Lynette CHILDS and Larry B. Scott, as Co-Administrators of the Estate of, and Natural Parents of, Ashley Latrise Scott, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Rosa L. REESE, Individually, and as the Parent of Debra Gordon, Deceased, and as the Administratrix of the Estates of Debra Gordon and General Gordon, and for the benefit of the Next of Kin of General Gordon, Plaintiffs,
v.
UNITED STATES of America, Defendant.
Nos. CV 494-252, CV 494-239.
United States District Court, S.D. Georgia, Savannah Division.
April 30, 1996.
*1571 Jeffrey W. Lasky, Savannah, GA, Childs and Scott for Myra H. Dixon, Atlanta, GA, for Reese.
Lawrence B. Lee, Melissa S. Mundell, Savannah, GA, for defendant.
MEMORANDUM AND ORDER
NANGLE, District Judge.
Plaintiffs brought the above-captioned actions under the Federal Tort Claims Act seeking recovery for the wrongful death of their decedents. Defendant admitted liability in both cases and the Court consolidated the cases for a bench trial on the question of damages. After considering the evidence adduced at trial, as well as the parties' exhibits, pleadings, stipulations and proposed findings *1572 of fact and conclusions of law, the Court enters the following Findings of Fact and Conclusions of Law. Fed.R.Civ.P. 52(a).
FINDINGS OF FACT
I. Introduction
On November 10, 1992, Ashley Latrise Scott ("Ashley"), Debra Reese Gordon ("Debra") and her unborn child, General Gordon ("General"), were traveling in Debra's automobile through an intersection in downtown Savannah, Georgia, when a United States Postal Service ("USPS") truck wrongfully entered the intersection and struck Debra's automobile. The force of the collision pushed the automobile head-on into another truck that was sitting at the intersection. Ashley, Debra and General died almost immediately after the collision.
Plaintiffs brought the above-captioned actions against the United States of America ("USA" or "Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., seeking damages for decedents' wrongful death, pain and suffering and funeral and medical expenses. Plaintiffs Childs and Scott, as administrators of Ashley's estate, subsequently withdrew the estate's claim for pain and suffering because they had not properly presented this claim to the United States Postal Service as required by 28 U.S.C. § 2675. The Court, moreover, dismissed the claim of General Gordon's estate for pain and suffering after the Georgia Supreme Court held in Peters v. Hospital Authority of Elbert County, 265 Ga. 487, 458 S.E.2d 628 (1995), that there is no cause of action under O.C.G.A. § 51-1-19 for an unborn fetus' personal injury.
With respect to plaintiffs' remaining claims, the Government admitted that it is vicariously liable for the negligent acts of the Government employee operating the USPS truck,[1] and the parties have stipulated that this Court has jurisdiction over these actions pursuant to 28 U.S.C. § 1346, that venue is proper under 28 U.S.C. § 1402(b) and that plaintiffs had properly presented their remaining claims to the United States Postal Service as required by 28 U.S.C. § 2675. The parties have further stipulated that Ashley's estate is entitled to $5,545.46 for her funeral and medical expenses and that the estates of Debra and General Gordon are entitled to a total of $8,794.00 for funeral and medical expenses, as well as expenses related to the damage done to Debra's vehicle. Remaining for resolution, then, is the question of damages as to plaintiffs' wrongful death claims and as to the claim of Debra Gordon's estate for her pain and suffering.
II. Background of Decedents
A. Ashley Latrise Scott
Ashley was a female born on July 9, 1986. On the date of her death, November 10, 1992, she was approximately 6.3 years old. Ashley was in good physical health and, according to the Mortality Table for 1949, Ultimate,[2] had a life expectancy at the time of her death of 73.19 years.
Ashley's natural mother is plaintiff Lynette D. Childs and her natural father is plaintiff Larry B. Scott. Childs and Scott have never been married to one another and do not live together. Ms. Childs lives in Savannah, Georgia, holds a college degree and is employed as a claims analyst for a major insurance company. Mr. Scott lives in Hardeeville, South Carolina, where he owns an excavation business.
At the time of her death, Ashley lived with her mother in Savannah, Georgia. By all accounts, Ashley and Ms. Childs had a very close relationship and spent a great deal of time together. They regularly attended church in Savannah where Ashley sang in the choir. At home, Ashley was required to contribute to the daily maintenance of the house and to complete her homework before engaging in any other activities. Ashley was also very active in the Girl Scouts. In sum, Ms. Childs provided a home environment for *1573 Ashley that was nurturing, supportive and disciplined.
Although Mr. Scott lived apart from Ashley, the testimony indicated that he was also involved in Ashley's life. Mr. Scott testified that he provided her with financial support; however, his testimony on this point was noticeably vague, he admitted that he did not make regular support payments and he failed to present any documentary evidence (i.e., checks, etc.) to support his claim of financial assistance. Mr. Scott further testified that he frequently visited Ashley in Savannah and occasionally took her back to Hardeeville to be with his family. Ashley and her father also regularly took trips to the beach and to amusement parks such as Six Flags and Walt Disney World.
At the time of her death, Ashley was in the first grade. Ashley's teacher, Margaret H. Parker, testified that Ashley was an exceptional child, both as a student and as a person. On her only quarterly report card, Ms. Parker awarded Ashley an "excellent" in every school subject except arts and science. According to Ms. Parker, Ashley had, during the short time that she was in the first grade, exhibited a level of intellectual ability and behavior that surpassed that of most of the other students in her class. Ashley was in fact described by all witnesses as being mature for her age, intelligent, thoughtful, well-mannered and respectful. Ms. Parker further testified that Ashley did not seem to have the fear and trepidation that most children exhibit when they start first grade. Ashley was voted "Student of the Month" in her first-grade class during the month before she was killed.
Both Childs and Scott testified that they had always planned for Ashley to attend college. Mr. Scott also testified that he had two certificates of deposit at a local bank totaling $16,500.00, which he intended to be Ashley's college fund. The certificates were, however, in Mr. Scott's name only and, again, plaintiffs did not introduce any documentary evidence which would indicate that the certificates were in fact intended for Ashley's benefit.
B. Debra and General Gordon
Debra Gordon was a 33 year-old female who was, at the time of her death, eight months pregnant with General Gordon. Debra was in relatively good physical health and, according to the Mortality Table for 1949, Ultimate, had a life expectancy at the time of her death of 46.80 years. General Gordon, who upon autopsy appeared to be a healthy fetus, had, according to the same table, a life expectancy of 73.18 years.
Debra grew up in a large, close-knit family on a farm in Millen, Georgia. Debra's mother, plaintiff Rosa Reese, and her father, General Reese, were married for 53 years, and Debra was one of eight children. Debra remained extremely close to all of her family, enjoying the counsel, advice, society and companionship of her mother and siblings until the time of her death. Debra was generally regarded as the favorite child in the family and the moving force in assuring that the family remained close.
Debra attended Jenkins County High School in Millen, Georgia, where she was an excellent student. She was on the Student Council, was vice-president of the National Honor Society, was president of the Foreign Language Club and was very active in the Future Business Leaders of America. Debra was also very popular at school.
After graduating from high school, Debra attended college for approximately three years, during which time she studied to become a nurse. Many of Debra's siblings, and almost all of her nieces and nephews, have attended college or have college degrees.
Debra did not, however, attain a nursing degree. Instead, she began working at M & M Foods, a grocery store in Savannah, Georgia, that subsequently became Kroger Foods. Debra worked her way up to produce manager in 1983 and held that position until the time of her death in 1992. She worked at Kroger for a total of 13 years.
Debra was an exceptional employee who took great pride in her work. The Court heard testimony from two of Debra's former superiors at Kroger. Both testified that she was the best produce manager that they had ever worked with, and one of the witnesses *1574 indicated that he had rated Debra's job performance as high as any employee he had ever rated at Kroger. In sum, Debra was an extremely successful produce manager: her department was consistently profitable and she had an excellent relationship with both her co-workers and the store's customers. Both witnesses also indicated that Debra could have advanced into upper management in the company if she had been so inclined.
Debra's personal life centered around church and family. She regularly attended the same church that Ashley and Lynette Childs attended in Savannah. Debra was Ashley's godmother and they had a close relationship. Debra liked people and was extremely outgoing and friendly with the those in her life.
Debra was married for five years but did not have any children from that marriage. In 1985, her husband committed suicide. Thus, at the time of her death, Debra was an unmarried widow living alone in her own home in Savannah, Georgia. She knew that she was going to give birth to a boy out of wedlock and had decided to name the child after her father, General Reese. Debra did not, however, disclose the identity of the father of General to anyone, and General's father remains unknown to this date. Thus, although General clearly would have been the beneficiary of the love, care and companionship of Debra and her family, he was apparently going to be born into a home in which the father would be completely absent.
III. Economic Testimony
The Court heard testimony from three economic experts, each of whom attempted to place an economic value on the loss associated with the decedents' deaths based upon their lost future income, fringe benefits and household services. Robert D. Coston, Ph. D., a Professor of Economics at Georgia Southern University, testified on behalf of plaintiffs Childs and Scott as to the economic loss associated with Ashley's death, while Francis W. Rushing, Ph.D., a Professor of Economics at Georgia State University, testified on behalf of plaintiff Reese as to the economic loss associated with the deaths of Debra and General. For the Government, David R. Kamerschen, Ph.D., a Professor of Economics at the University of Georgia, testified as to the lost economic value of each of the decedent's lives.
In valuing the decedents' lost future income, all three experts used the following four elements in making their calculations: (1) base-year or entry-level income; (2) income growth rate; (3) worklife expectancy; and (4) discount rate. The base-year income is the decedent's initial actual or projected before-tax income. The income growth rate reflects the fact that the base-year income will grow over time as a result of inflation, productivity gains and progression in one's career. The worklife expectancy is the probable length of time a person would have remained in the workforce, taking into account periods of voluntary and involuntary unemployment. Finally, because income earned in the future is less valuable than income earned today, the discount rate is used to calculate the present value of a decedent's future income loss.
In addition to these elements, Dr. Kamerschen's appraisals include two other elements: personal tax offset and personal expense/consumption offset. These elements simply reflect the fact that some portion of the decedents' income would be lost to the decedent's personal consumption and to income taxes and would not, therefore, be available to the decedents' survivors. Plaintiffs, as set forth below, contend that neither offset is warranted under the FTCA or Georgia law; thus, neither Dr. Coston nor Dr. Rushing included these elements in their appraisals.
In valuing decedents' lost fringe benefits, which include items such as health insurance, pension benefits and social security, each expert simply took a percentage, ranging from 15% to 20%, of the present value of the decedents' lost income. The final element included in some of the experts' appraisals is lost household services, which reflects the fact that the decedents' uncompensated household labor services have been lost. Thus, the experts attempt to place an economic value on the decedents' contributions to a household by first determining the number of hours in a year that the decedents *1575 would have spent doing uncompensated household labor and then multiplying this number by the minimum wage in 1993, which was $4.25 per hour. They grow this figure and then discount it back to present-day value in the same way that they do for decedents' lost income.
Although each expert employed essentially the same appraisal technique, their calculation of the decedents' total economic loss, not surprisingly, varied substantially. Their conclusions are set forth below.
A. Ashley Latrise Scott
In appraising Ashley's lost future income, Dr. Coston assumes, based upon her family background and success in the first grade, that Ashley would have attained a college degree and would have entered the work force as either a health technician or teacher. Based upon this assumption, he projects that Ashley's entry-level income would be $23,400.00[3] in 1995 dollars and that her work-life expectancy would be 34.9 years, which assumes that she would have been out of the workforce for 8.1 years and retired at the age of 65.[4]
Dr. Coston applies a growth rate of 6% to $23,400.00 and grows it until the year that she graduates from college and enters the workforce.[5] This yields her projected starting salary. He then grows her projected starting salary at 6% over her expected worklife, which yields her projected lifetime earnings. He then discounts these future cashflows back to present-day value (he chose July 1, 1995) at the statutorily-mandated rate of 5%. See O.C.G.A. § 51-12-13. Performing this calculation, Dr. Coston arrives at $1,217,247.34 as the total present-day value of Ashley's lost income.
Dr. Kamerschen, on the other hand, makes no assumptions about the education or career track that Ashley would take. Instead, he projects a base-level before tax income for Ashley of $13,202.00 in 1993, which is a weighted average of the actual historical before-tax income for black females of all education levels in the United States.[6] He performs a similar calculation with respect to Ashley's worklife expectancy. He assumes that she would have entered the workforce at age 20 and would have a worklife expectancy of 28.15 years, which is an average of worklife expectancies for 20-year old black females of all education levels.[7] Dr. Kamerschen thus grows $13,202.00 at the same growth rate used by Dr. Coston 6%[8] until the year Ashley would have turned 20 and continues to grow the figure over her 28.15-year worklife expectancy. He also uses the same discount rate of 5%[9] to discount these future cashflows back to a present-day value (he chose July 9, 1995) of $470,628.00. Dr. *1576 Kamerschen then deducts 30% from this figure to account for the effect of personal taxes and then deducts a further 50% from the resulting figure to account for Ashley's personal consumption. Based upon these deductions, he calculates the present value of Ashley's lost net income as $164,720.00.
As to Ashley's lost fringe benefits, Dr. Coston took 20% of the present value of her lost income. He testified that fringe benefits for all occupations average between 15% and 25%, and he simply uses the mid-point of these two figures in arriving at $222,253.76 (20% × $1,217,247.34) as the present day value of Ashley's lost fringe benefits.
Dr. Kamerschen, on the other hand, took only 15% of the present value of Ashley's gross income[10] in appraising her lost fringe benefits. Thus, he calculates her lost fringe benefits as $70,594.00 (15% × $470,628.00).
Finally, Dr. Coston calculates the lost value of Ashley's household services by assuming that she would have rendered 20 hours per week in such services,[11] valuing these hours at the 1993 minimum wage of $4.25 per hour and assuming that she would have rendered these services over her entire life expectancy. He thus estimates Ashley's lost household services for 1993 as $4,420.00, grows this figure at 6% over Ashley's life expectancy and then discounts these future cashflows back to present-day value using the required 5% discount rate. Performing this calculation, he arrives at $289,337.90 as the value of Ashley's lost household services. Dr. Kamerschen does not include this element in his appraisal of Ashley, concluding that lost household services are too speculative to be estimated in the case of a young child.
Thus, the total present economic loss associated with Ashley's death, according to Dr. Coston, is $1,728,839.00, based upon lost income of $1,217,247.34, lost fringe benefits of $222,253.76 and lost household services of $289,337.90. Dr. Kamerschen, on the other hand, calculates her total loss as $235,314.00, based upon lost net income of $164,720.00 and lost fringe benefits of $70,594.00.
B. Debra Gordon
In appraising Debra's lost future income, Dr. Rushing uses her actual income in 1992 on an annualized basis, which is $24,196.00.[12] He then grows this figure at the annual average rate of pay raise that Debra enjoyed at Kroger 5.6% over her expected worklife, which he assumes is 32 years. This worklife expectancy is based upon his assumption that Debra would have worked without interruption until she retired at age 65.[13] Dr. Rushing then discounts these future cashflows back to present-day value (he chose July 1, 1995) using the 5% discount rate to arrive at $890,139.00 as the present value of her lost future wages.
Likewise, Dr. Kamerschen uses $24,196.00 as Debra's base-year income. He also calculates a growth rate for Debra based upon her earnings history at Kroger; however, his calculation is based upon a geometric average, whereas Dr. Rushing's is based upon an arithmetic average. Thus, Dr. Kamerschen calculates a slightly lower growth rate of 5.41%.
In contrast to Dr. Rushing, Dr. Kamerschen relies upon the worklife tables in arriving at Debra's expected worklife. He assumes a worklife for Debra of 20.99 years, which is the average of (1) an active black female 33.3 years of age (19.09 years); and (2) an active black female 33.3 years of age with 15 or more years of schooling (22.89 *1577 years).[14] He thus grows Debra's income for 20.99 years at 5.41% per year and then discounts these cashflows back to present-day value using the 5% discount rate to arrive at a present value for her lost income of $556,770.00. As he did for Ashley, he then subtracts 30% for taxes and 50% for personal consumption to arrive at $194,870.00 as the present value of her lost net income.
In order to calculate Debra's lost fringe benefits, Dr. Rushing spoke with Kroger representatives to find out what fringe benefits were available to its employees. Based upon these discussions, Dr. Rushing chose 19.6% as the appropriate percentage of Debra's lost future income for calculating her lost fringe benefits. Thus, multiplying $890,139.00 by 19.6%, Dr. Rushing arrives at $174,467.24 as the value of her lost fringe benefits. Dr. Kamerschen, on the other hand, takes 15% of his calculation for Debra's lost gross income $556,770.00 to arrive at $83,516.00 as the value of Debra's lost fringe benefits.
As to Debra's lost household services, Dr. Rushing assumes that she would have provided such services during the first 18 years of General Gordon's life. Thus, he values Debra's lost household services in the first year of General Gordon's life as $4,618.90, based upon 20.9 hours of such services per week valued at the minimum wage rate of $4.25 per hour. He then grows this figure at 4.3%[15] for a period of 18 years and then discounts these future cashflows back to present value using the 5% discount rate. He thus calculates the present value of Debra's lost household services as $82,088.00.
Dr. Kamerschen agrees that lost household services are properly attributed to Debra for the first 18 years of General's life. He finds the value of her lost household services in the first year of General's life to be $5,950.50, based upon the assumption that she would have rendered 1,400 hours per year[16] of such services valued at the minimum wage of $4.25 per hour. He grows this yearly figure for 18 years at an annual growth rate of 6.36% and then brings these cashflows back to present-day value using the 5% discount rate to arrive at a total value for her lost household services of $119,757.00.
Thus, the total present economic loss associated with Debra's death, according to Dr. Rushing, is $1,147,694.00, based upon lost future income of $890,139.00, lost fringe benefits of $174,467.24 and lost household services of $82,088.00. Dr. Kamerschen, on the other hand, calculates the total economic loss associated with her death as $398,142.00, based upon lost net income of $194,870.00, lost fringe benefits of $83,516.00 and lost household services of $119,757.00.
C. General Gordon
In appraising General's lost future income, Dr. Rushing assumes, based upon General's family background, that he would have attained either a two-year or four-year college degree. Thus, he calculates General's lost income based upon two different profiles: one based upon two years of college and the other based upon four years. Based upon these profiles, Dr. Rushing estimates the 1992 starting income for a male with an associate degree and a male with a bachelor's degree.[17] He then grows the starting salary for an associate degree holder to the year that General would enter the workforce 2013 at the annual rate of 4.3%. He performs the same calculation for a bachelor degree holder, growing the starting salary *1578 for such a graduate to the year 2015, which is the year that General would have entered the workforce under this scenario. This, according to Dr. Rushing, yields General's starting salary in 2013 with an associate degree, and his starting salary in 2015 with a bachelor's degree. He then continues to grow the associate degree starting income for the worklife expectancy of an associate degree holder, 37.6 years, and the bachelor degree starting income for the worklife expectancy of a bachelor degree holder, 38.3 years.[18] Finally, he discounts these future cashflows back to present-day value using the 5% discount rate. Based upon these calculations, Dr. Rushing concludes that the present-day value of General's lost future income is $1,136,830.00, assuming he would have attained an associate degree, and $1,441,752.00, assuming he would have attained a bachelor degree.
Dr. Kamerschen, on the other hand, performs the same calculation that he did in arriving at Ashley's starting income: he calculates the weighted average of the actual historical before-tax income for black males of all education levels in the United States, which is $16,990.00 in 1993 dollars.[19] Dr. Kamerschen assumes that General would have entered the workforce at age 20 and would have a worklife expectancy of 35.22 years, which is an average of the worklife expectancies for 20-year old black males of all educational levels.[20] Thus, he grows $16,990.00 until the year General would be 20 years old, and then continues to grow it for 35.22 years, his worklife expectancy. Dr. Kamerschen then discounts these future cashflows back to present value using the 5% discount rate to get $866,710.00 as the present value of General's lost future income. After deducting 30% of this figure for income taxes and a further 50% from the resulting figure to account for General's personal consumption, Dr. Kamerschen arrives at $303,349.00 as the present value of General's lost net income.
As to General's lost fringe benefits, Dr. Rushing takes 19.6% of General's lost income, which is $222,819.00 under the associate degree scenario and $282,583.00 under the bachelor degree scenario. Dr. Kamerschen, on the other hand, takes 15% of his estimate of General's lost gross income, $866,710.00, to arrive at $130,007.00 as the lost value of General's fringe benefits. Both experts concluded that lost household services were inappropriate in the case of an unborn child.
Thus, Dr. Rushing's appraisal of the total present economic loss associated with General's death, assuming he would have attained a two-year college degree, is $1,359,649.00, based upon lost future income of $1,136,830.00 and lost fringe benefits of $222,819.00. Under his assumption that General would have attained a four-year college degree, Dr. Rushing finds the total loss to be $1,724,335.00, based upon lost future income of $1,441,752.00 and lost fringe benefits of $282,583.00. Dr. Kamerschen, on the other hand, calculates the total economic loss associated with General's death as $433,355.00, based upon lost future net income of $303,349.00 and lost fringe benefits of $130,007.00.
IV. Evaluation of the Expert Testimony Before the Court
In evaluating the experts' testimony as to the economic loss associated with the decedents' deaths, the Court is constrained to point out that virtually all hypotheses and projections relating to the decedents' lives are necessarily speculative. No triers of fact, be they jurors or judges, can predict the future. The wisest of sages acknowledge this. All history proves that it is simply not possible to anticipate the vagaries of life. *1579 Predicting who will live a long and enjoyable life or an unhappy and fretful life, who will suffer from illnesses, both mild and serious, who will have to spend extra time to care for a loved one, who will spend time in the Peace Corps., a kibbutz or other service organization, who will fail and who will succeed and who will either enjoy or suffer through life, is a game for fools.
Genes and luck play a significant role in all of our lives and there is no way to factor such matters into life's equation. Perhaps the horrible accident of November 10, 1992, that brings us together in this case is a most sad, but most apt, example of this. Any one of us who has attended a 40th, or even 50th, reunion of a grade school or high school or college class can attest to the unpredictability of life. Some of the most charismatic and promising of our then colleagues died young, or suffered long illness or suffered through other unfortunate and unhappy events. Others, perhaps even those deemed least likely to succeed, have led rather successful, apparently useful lives. Very few members of the human race in our great country, whether male or female, white or black or yellow, of whatever ethnic composition, escape the unpredictable vagaries of life. Life's cup is both half empty and half full.
Valuing the life of a human being is, then, a profoundly difficult task and is made all the more difficult in these cases by the fact that there is no clear economic loss associated with the deaths of either Ashley or General. Unlike Debra, who had an earnings history and therefore a clear monetary loss when she died, Ashley was a six-year old child with no earnings history, while General was an unborn fetus who not only had no earnings history at the time of his death, but had not even taken his first breath on this earth. Thus, the mathematical precision by which all three experts value the economic loss associated with Ashley's and General's deaths is illusory; there simply is no factual basis for the assumptions that underlie their calculations. As the Georgia Court of Appeals recognized some years ago:
[T]here is not, and cannot be in the very nature of this and other like cases, any evidence from which a jury could mathematically determine the value of the life of the deceased [seven-year old] infant on the basis of either past or future earnings or future earning capacity, and for this reason the question of determining the amount to be awarded is almost entirely within the discretion of the jury ...
Collins v. McPherson, 91 Ga.App. 347, 85 S.E.2d 552, 555 (1954).
Thus, because no one can know what Ashley's or General's educational and occupational achievement would have been, the experts were at liberty to make assumptions consistent with the interests of the party for which they were testifying. Plaintiffs' experts were optimistic in their assumptions about Ashley's and General's schooling, starting salary and expected worklife, while defendant's expert was very conservative in his assumptions about these critical elements. It is not surprising, then, that Dr. Coston's appraisal of the economic loss associated with Ashley's death exceeds Dr. Kamerschen's appraisal by almost $1.5 million, while Dr. Rushing's appraisal of the economic loss associated with General's death exceeds Dr. Kamerschen's appraisal by more than $1 million.[21]
Dr. Coston's appraisal of $1,728,839.00 is premised upon two very optimistic assumptions. The first is that Ashley would have received a four-year college degree and would have a salary and worklife commensurate with this level of education. This is an obviously optimistic assumption given that Ashley had not completed the first grade at the time of her death. Dr. Coston's second optimistic assumption is that Ashley would have rendered $4,420.00 (in 1993 dollars) worth of household services over her entire life expectancy of 73.19 years. It is, in the Court's judgment, most improbable that a six-year old child would render household services of such a substantial value. The Court agrees, moreover, with Drs. Rushing's *1580 and Kamerschen's conclusion that lost household services are too speculative to attribute to a young child.
Similarly, Dr. Rushing's appraisal of $1,359,649.00 to $1,724,335.00 as the range of economic loss associated with General's death is premised upon the extremely optimistic assumption that General would have attained either a two- or four-year college degree and would have had a starting salary and worklife commensurate with these levels of education. These assumptions are exceedingly optimistic in light of the fact that absolutely nothing is even known about General's basic personal attributes, not to mention the more subtle qualities that are vital to an individual's success: academic capabilities, work ethic, ability to get along and gain rapport with people, etc.
Turning to Dr. Kamerschen's appraisals of $235,314.00 for Ashley and $433,355.00 for General, the Court would first note that his deduction of 30% of the decedents' lost income to account for their personal taxes and 50% from the resulting figure to account for their personal expenses is contrary to the Court's construction of Georgia law and the FTCA, as more fully explained below. Accordingly, the appropriate figure to look at in Dr. Kamerschen's appraisals is his calculation of decedents' lost gross income, which brings his appraisal of Ashley's economic loss up to $531,222.00 and General's up to $996,717.00.
Dr. Kamerschen attempts to avoid the pitfalls inherent in making specific assumptions by calculating a blended salary and worklife expectancy for Ashley based upon the salaries and worklife expectancies for all black females and for General based upon the salaries and worklife expectancies for all black males. In so doing, however, he arrives at figures that are not consistent with Ashley's and General's respective backgrounds. His projections of Ashley's starting salary and expected worklife are significantly lower than his projections for General,[22] even though Ashley's short personal history clearly indicates that she had an aptitude for school and an ability to gain rapport with people. General, on the other hand, has no personal history and was to be raised in a single-parent home, without knowing his father, by a mother who did not graduate from college.
Finally, there is a question as to the reliability of Dr. Kamerschen's worklife expectancy calculations. The Department of Labor report[23] on which he relies in making his calculations suggests that it is improper to combine worklife expectancies based upon gender and worklife expectancies based upon race, as Dr. Kamerschen does in calculating all of the decedents' blended worklife expectancies. In other words, the author of the report tested for the effect of race and for the effect of gender upon a person's worklife expectancy. She did not, however, test for the combined effect of both race and gender "because the sample is too limited to develop reliable joint probabilities."[24] Thus, Dr. Kamerschen's worklife expectancies are based upon a calculation deemed to be imprudent by the author of the report.
In sum, the appraisals of economic loss associated with Ashley's and General's deaths are little more than speculation by witnesses whose underlying assumptions have been obviously influenced by the interests of the party for whom they have testified. For this reason, the Court will give very limited credibility to the expert testimony on the economic loss associated with Ashley's and General's deaths.
CONCLUSIONS OF LAW
I. The Parties' Contentions
Plaintiffs contend that they are entitled, under the FTCA and Georgia's wrongful death statute, to two distinct elements of recovery for the wrongful deaths of Ashley, Debra and General: 1) the tangible, economic *1581 value of their lives, as shown by the testimony of their experts; and 2) the intangible, non-economic value of the their lives as shown by the testimony of the decedents' family, friends, co-workers, teachers and ministers.
Plaintiffs further contend that their recovery should not be reduced by either the personal taxes or expenses (i.e. consumption) that decedents would have incurred had they lived. In support of this contention, plaintiffs first point out that Georgia's wrongful death statute specifically provides that the personal expenses of a decedent are not to be considered by the fact finder in arriving at an award. Plaintiffs then argue that, under the Supreme Court's recent interpretation of the FTCA in Molzof v. United States, 502 U.S. 301, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992), the FTCA's prohibition against an award of punitive damages can no longer be construed as requiring the deduction of personal taxes or personal expenses.
The Government concedes that an award under the Georgia wrongful death statute may include both economic and non-economic losses. It argues, however, that these two elements are generally viewed as alternative means of assessing damages under the statute, so that where, as here, a purely economic award is sufficient to fully compensate a wrongful death plaintiff, Georgia case law suggests that an award of non-economic losses is not appropriate.
The Government also contends that, under the FTCA, plaintiffs' wrongful death awards must be reduced by the personal expenses and taxes which the decedents would have incurred had they lived. Relying upon a number of decisions which pre-date Molzof,[25] the Government asserts that the FTCA's prohibition against an award of punitive damages requires a deduction for personal expenses and taxes to avoid awarding any damages that are not purely compensatory in nature.
II. The Federal Tort Claims Act
The FTCA provides that "[t]he United States shall be liable [for torts committed by its employees while acting within the scope of their employment] in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. See also 28 U.S.C. § 2672. Because the United States is liable in the same manner and to the same extent as a private individual, its liability is determined under the laws of the state in which the act or omission giving rise to the cause of action arose, see Richards v. United States, 369 U.S. 1, 11-12, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962); Howell v. United States, 932 F.2d 915, 917 (11th Cir.1991), which in this case is the State of Georgia.
III. Damages Under The Georgia Wrongful Death Statute
Recovery in Georgia for the wrongful death of an individual is governed by Georgia's wrongful death statute, O.C.G.A. §§ 51-4-1 through 51-4-5. There is no dispute that the right of recovery under this statute for the wrongful death of Ashley resides with her parents, plaintiffs Childs and Scott, and that the right of recovery for the wrongful death of Debra resides with her mother, plaintiff Rosa Reese. See O.C.G.A. §§ 19-7-1, 51-4-4. Furthermore, as noted supra note 1, the Court ruled in response to the Government's motion to dismiss that, under O.C.G.A. §§ 19-7-1(c) and 51-4-5(a), the right of recovery for General's wrongful death resides with plaintiff Rosa Reese, as the administrator of General Gordon's estate. See Rosa L. Reese, etc., et al. v. United States of America, ___ F.Supp. ___ [1995 WL 865483] (S.D.Ga.1995) (doc. 24).
The Georgia wrongful death statute provides for the recovery of "the full value of the life of the decedent", see O.C.G.A. §§ 51-4-2, -3, and -5(a), which is defined as "the full value of the life of the decedent without *1582 deducting for any of the necessary or personal expenses of the decedent had he lived." O.C.G.A. § 51-4-1(1). The Court of Appeals of Georgia has held that the "full value of life" is comprised of two categories of damages:
(1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value ... or
(2) lost intangible items whose value cannot be precisely quantified, such as a parent's society, advice, example and counsel as determined by the enlightened conscience of the jury.
Consolidated Freightways Corp. of Del. v. Futrell, 201 Ga.App. 233, 410 S.E.2d 751, 752 (1991) (internal quotations and citations omitted).[26]
Seizing upon the court of appeal's use in Consolidated Freightways of "or" to separate these two categories of damages, the Government argues that the categories are alternative methods for calculating the full value of life. This contention is, however, refuted by the balance of the court's opinion in that case. After concluding that the jury could consider one of the decedent's receipt of veteran's disability benefits in arriving at the economic loss associated with his death, Consolidated Freightways, 410 S.E.2d at 753, the court went on to approve the jury's award for the intangible component of the decedents' lives:
There was evidence upon which the jury could base an award for loss of intangible aspects of the decedents' lives. Testimony was given concerning the character and family circumstances of the decedents, and there was evidence, though scant, of the decedents' relationships with their respective children. In considering this evidence in light of their own experience and knowledge of human affairs, and governed by their enlightened conscience ..., we cannot say the jurors' verdict shocks the conscience ...
Id.
The two categories of damages set out by the court of appeals in Consolidated Freightways are, therefore, conjunctive components of the full value of a decedent's life. They are not, however, mandatory components:
[W]hile a jury may, depending upon the facts of the case, determine that the full value of [a decedent's] life is the gross sum that he would have earned to the end of his life, had he lived, reduced to its present cash value, "the jury is not bound to find that lifetime earnings reduced to present value is the `full value of the life of the decedent' but such is an aid only to the jury in making such determination."
Bulloch Co. Hospital Auth. v. Fowler, 124 Ga.App. 242, 183 S.E.2d 586, 590 (1971)[27] (quoting Rhodes v. Baker, 116 Ga.App. 157, 156 S.E.2d 545, 550 (1967)).[28] The fact-finder is thus vested with discretion in applying these components to the particular facts before it, and this discretion is especially wide in the case of a young child:
[A]s to infants of tender years, it is impossible to give evidence of the pecuniary value of the probable loss, and therefore the question of damages for loss on account of impairment of future earning capacity is left to the sound judgment, experience, and conscience of the jury without any proof thereof whatever ... "The value to a parent of the services of a minor child is not determinable solely from evidence as to the amount of money the child earns or is capable of earning during its minority. The value of a child's services may be determined from all the evidence, including evidence as to the age and precocity of the child, its earning capacity, and the services rendered by it, the circumstances of the *1583 family and the living conditions, and from experience and knowledge of human affairs on the part of the jury." (citations and internal quotations omitted)
Collins v. McPherson, 91 Ga.App. 347, 85 S.E.2d 552, 554 (1954) (quoting Seaboard Air-Line Ry. Co. v. Sarman, 38 Ga.App. 637, 144 S.E. 810, 814 (1928)).
Finally, the Georgia wrongful death statute is clear that the decedent's personal and necessary expenses are not to be considered in assessing the full value of a decedent's life. This mandate has been interpreted to include the decedent's personal income taxes. See Harden v. U.S., 688 F.2d 1025, 1029 (5th Cir. Unit B 1982) ("Under Georgia law, taxes and other personal expenses of the decedent are not deducted from wrongful death awards."); Consolidated Freightways Corp., 410 S.E.2d at 755 (holding that the trial court had not committed reversible error in refusing to instruct the jury that any award it made under Georgia's wrongful death statute would not be subject to income taxes); Miller v. Jenkins, 201 Ga.App. 825, 412 S.E.2d 555, 555-56 (1991) (approving Georgia Superior Court pattern jury charge on the "full value of life" which instructs the jury to "consider the gross sum [the] deceased would have earned to the end of his life, had he not been killed, reduced to its present cash value in determining the amount of the full value of the life of the deceased."[29]).
It is apparent from the foregoing that Georgia law permits this Court, as the factfinder in these two cases, wide latitude in calculating the "full value" of the lives of Ashley, Debra and General. The Court may consider the economic losses associated with the decedents' deaths, as well as any non-economic, intangible losses that the Court deems relevant in determining the full value of the their lives. Georgia law clearly does not, however, permit consideration of the personal expenses and income taxes that the decedents would have incurred had they lived.
IV. The Effect of the FTCA's Prohibition Against Punitive Damages
Georgia law notwithstanding, the Government argues that the FTCA's prohibition against "punitive damages" requires the consideration (i.e., deduction) of the decedents' personal expenses and income taxes in making the wrongful death awards in these cases. The Court must, therefore, consider whether the Georgia wrongful death statute's mandate that a decedent's personal expenses and taxes be ignored in arriving at the full value of life, results in an award of "punitive damages", as that term is used in the FTCA.
As previously set forth, the FTCA provides that the United States "shall not be liable for ... punitive damages." 28 U.S.C. § 2674. The former Fifth Circuit has held that this provision requires a court to deduct a decedent's personal expenses and taxes from an award under the Georgia wrongful death statute which is based upon the decedent's lost future earnings. Harden v. U.S., 688 F.2d 1025, 1029 (5th Cir. Unit B 1982).[30] In so holding, the Court reasoned that, because a decedent's personal expenses and taxes would have reduced the income available to her family had she lived, the failure to take these items into account would result in an award which is not strictly compensatory in nature and therefore punitive in effect. Harden, 688 F.2d at 1029.[31] Thus, under Harden, any damages not awarded as compensation for an actual, provable loss are punitive in effect and therefore barred by § 2674. As previously noted, however, Harden pre-dates the Supreme Court's decision in Molzof v. United States, 502 U.S. 301, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992).
*1584 Molzof involved a suit on behalf of a veteran who had received negligent care in a Veterans' Administration ("V.A.") hospital. As in both of the cases at bar, the Government admitted liability and argued that the prohibition in 28 U.S.C. § 2674 against punitive damages barred the award of any damages that were not strictly compensatory in nature. The district court agreed and refused to award the plaintiff any damages for medical care which duplicated the free care he continued to receive at the V.A. hospital, or for his loss of enjoyment of life. The Court of Appeals affirmed concluding that such an award would be punitive in effect and therefore barred by the FTCA.
The Supreme Court, in a unanimous opinion reversing the Court of Appeals, flatly rejected the Government's argument that damages which are not strictly compensatory in nature are barred by § 2674's prohibition against an award of punitive damages:
The Government's interpretation of § 2674 appears to be premised on the assumption that the statute provides that the United States "shall be liable only for compensatory damages." But the first clause of § 2674, the provision we are interpreting, does not say that. What it clearly states is that the United States "shall not be liable ... for punitive damages." The difference is important. The statutory language suggests that to the extent a plaintiff may be entitled to damages that are not legally considered "punitive damages," but which are for some reason above and beyond ordinary notions of compensation, the United States is liable "in the same manner and to the same extent as a private individual." The damages in the "gray" zone are not by definition "punitive damages" barred under the [FTCA]. (emphasis added)
Molzof, 502 U.S. at 308, 112 S.Ct. at 716. Accordingly, the Court concluded that "§ 2674 bars the recovery only of what are legally considered `punitive damages' under traditional common-law principles." Id. at 312, 112 S.Ct. at 718.
The Supreme Court's opinion in Molzof thus could not be any clearer: "Punitive damages" is a term of art which has particular meaning under state law, and any damages that are not technically considered "punitive damages" under the relevant state law are available to a plaintiff proceeding under the FTCA. Harden's "punitive in effect" test no longer controls the inquiry under § 2674.
Georgia courts have repeatedly held that "punitive damages" are not available under Georgia's wrongful death statute. See e.g., Engle v. Finch, 165 Ga. 131, 139 S.E. 868 (1927); Truelove v. Wilson, 159 Ga.App. 906, 285 S.E.2d 556 (1981); Roescher v. Lehigh Acres Development, Inc., 125 Ga.App. 420, 188 S.E.2d 154 (1972).[32] Thus, all of the damages comprehended by the Georgia wrongful death statute are either compensatory in nature or fall into the "gray zone" referred to by the Court in Molzof. More specifically, the statute's mandate that the "full value of life" be determined without deducting a decedent's personal expenses and taxes does not result in an award of "punitive damages", as that term is used in 28 U.S.C. § 2674. Accordingly, the Court will not consider the decedents' personal expenses and taxes in determining the full value of their lives.
V. Conclusions as to the Full Value of the Decedents' Lives
Applying the law to the facts found by this Court, the following are the Court's conclusions as to the full value of Ashley's, Debra's and General's lives, expressed, of course, in monetary terms, the only method of valuation available to the Court.
A. Ashley Scott
It is apparent that Ashley enjoyed a full life for a six-year old child. She was growing up in a good home; a home which emphasized family, church, school and community. She had an excellent relationship with her mother, father and extended family, *1585 as well as her friends at school, at church and at Girl Scouts. She had also shown, during her short life, promise as a student and as a person. On the other hand, Ashley's mother and father never married and do not live together. Thus, no matter how one views her parents' relationship, the inescapable fact is that Ashley was being reared in a single-parent home by a working mother and with her father living a significant distance away in another state. Taking these intangible components of Ashley's life into account, as well as the evidence of the economic loss associated with her death, the Court concludes that the full value of Ashley's life is $1,343,000.00.
B. Debra Gordon
Debra, of course, is the decedent about whom the most is known. She had an exceptionally close relationship with all of her family, and she was also very close to her co-workers and friends at church. She also loved her job and was clearly very good at it. Debra's life was not, however, without difficulty. Her husband had committed suicide and she was about to become a single, unmarried mother who, for reasons of her own, disclosed to no one the identity of General's father.
Because Debra had a regular earnings history when she died, there is a clear economic loss associated with her death. Dr. Rushing appraises this loss at $1,147,694.00, while Dr. Kamerschen's appraises it at $760,043.00.[33] The $387,651.00 differential in their appraisals is largely explained by the disparity in their assumptions about Debra's worklife expectancy. Dr. Rushing assumed that Debra would have worked every year of her life until age 65, thus yielding a worklife expectancy of 32 years. Dr. Kamerschen, on the other hand, used a worklife expectancy of 20.99 years, which is a blended worklife expectancy for black females 33.3 years of age.[34]
Dr. Kamerschen's calculation ignores the fact that Debra had worked continuously since she began working for Kroger (M & M Foods), that she was an exceptional employee and that she would be the sole source of support for her child. The Court thus concludes that Dr. Rushing's assumption that Debra would work every year of her life until age 65 is more realistic in this instance. As a single mother she likely would have had no other choice.
As to Debra's lost fringe benefits, the Court concludes that Dr. Rushing's appraisal, though seemingly high, is the better of the two appraisals because the percentage of income that he chose is based upon his discussions with Kroger officials. Finally, as to Debra's lost household services, the Court, on this more speculative item, concludes that both of their appraisals of this loss are too high. Based upon these conclusions as to the economic loss associated with Debra's death, and taking into account the intangible components of Debra's life, the Court concludes that the full value of Debra's life is $1,350,000.00.
C. General Gordon
Obviously, one can only speculate as to the kind of person that General would have been, his life having been taken before anyone could know him. It is clear that he would have had a loving, caring mother who would have done her best to provide him with all of the things that he would have needed in life. He also would have had a large and caring family from which he could seek advice, counsel and companionship. He was, on the other hand, facing the disadvantage of being raised by a single, working mother, with no father in the home. Taking these intangible components of General's life into account, as well as the evidence of the economic loss associated with his death, the Court concludes that the full value of General's life is $1,083,000.00.
*1586 VI. The Claim of Debra Gordon's Estate for Her Pain and Suffering
Under Georgia law, "[p]ain and suffering is a generic name for several types of damages falling under that head, including mental and physical pain and suffering, past, present and future. The measure of damage in such cases is the enlightened conscience of impartial jurors." Aretz v. U.S., 456 F.Supp. 397, 401 (S.D.Ga.1978), aff'd, 604 F.2d 417 (5th Cir.1979).
It is undisputed that Debra died within minutes of the collision. Consequently, any pain and suffering that she might have experienced was momentary and fleeting. Accordingly, the Court concludes that an award of damages for pain and suffering is inappropriate in this case.
ORDER
Pursuant to the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that judgment be entered in favor of plaintiffs Lynette Childs and Larry B. Scott, as Co-Administrators of the Estate of Ashley Latrise Scott, and against defendant, the United States of America, in the amount of $5,545.46 for medical and funeral expenses.
IT IS FURTHER ORDERED that judgment be entered in favor of plaintiffs Lynette Childs and Larry B. Scott, as the natural parents of Ashley Latrise Scott, and against defendant, the United States of America, in the amount of $1,343,000.00 for the wrongful death of Ashley Latrise Scott.
IT IS FURTHER ORDERED that judgment be entered in favor of plaintiff Rosa L. Reese, as Administratrix of the Estates of Debra Gordon and General Gordon, and against defendant, the United States of America, in the amount of $8,794.00 for decedents' medical and funeral expenses, as well as property damage to Debra's vehicle.
IT IS FURTHER ORDERED that judgment be entered in favor of plaintiff Rosa L. Reese, as the parent of Debra Gordon, and against defendant, the United States of America, in the amount of $1,350,000.00 for the wrongful death of Debra Gordon.
IT IS FURTHER ORDERED that judgment be entered in favor of plaintiff Rosa L Reese, as the Administratrix of the Estate of General Gordon, and against defendant, the United States of America, in the amount of $1,083,000.00 for the wrongful death of General Gordon.
NOTES
[1] The Government's admission of liability did not include a waiver of its contention, made in a motion to dismiss, that plaintiff Rosa Reese lacks standing under Georgia law to bring a claim for the wrongful death of General Gordon. By Order entered April 24, 1995, the Court denied the Government's motion to dismiss.
[2] See O.C.G.A. § 24-4-45 and Appendix.
[3] Dr. Coston's projection as to Ashley's starting salary is based upon Occupational Outlook Quarterly, (Spring 1992) (Plaintiff Childs' Exhibits 28, 35).
[4] Dr. Coston's projection as to Ashley's expected worklife is taken from Worklife Estimates, Effects of Race and Education, Bulletin 2254, U.S. Dept. of Labor, Bureau of Labor Statistics, Table 4, at 5 (U.S. Printing Office February, 1986) (Plaintiffs Childs' Exhibit 25).
[5] Dr. Coston assumes Ashley would enter the workforce in the July following her graduation from college.
[6] Dr. Kamerschen's source is Money Income of Households, Families, and Persons in the United States: 1992, U.S. Bureau of the Census, Current Population Reports, Series P-60, No. 184 (Washington, D.C., U.S. Government Printing Office, 1993).
[7] Dr. Kamerschen relies upon the same publication for his worklife expectancies as does Dr. Coston, Worklife Estimates, Effects of Race and Education, Bulletin 2254, U.S. Dept. of Labor, Bureau of Labor Statistics, (U.S. Printing Office February, 1986), but uses different tables within the publication. Dr. Coston relies upon Table 4 of this publication, while Dr. Kamerschen averages the worklife expectancies in Tables A-5 and A-6, found at pages 19 and 20 of the publication.
[8] Both experts employ this judgmental growth rate, indicating that it closely approximates the growth rate in nominal compensation in the non-farm business sector over the past 30 to 40 years.
[9] In addition to using the 5% discount rate required under Georgia law, Dr. Kamerschen also makes an alternative calculation using a rate of 6.9%, which he claims is a more "historically accurate" figure. Dr. Kamerschen performs this alternative calculation for each decedent; however, because 5% is the mandatory rate under Georgia law, the Court will not recite these calculations herein.
[10] "Gross income" denotes income before deduction of taxes or personal consumption, while "net income" denotes income after deduction of taxes and personal consumption.
[11] Dr. Coston relied upon the Family Economic Review, published by The Department of Agriculture, for his assumption that Ashley would render 20 hours per week in household services.
[12] Debra had actually earned $20,970.09 at the time of her death in November of 1992; thus, Dr. Rushing simply carried her earnings out for the rest of the year to arrive at $24,196.00.
[13] Debra was 33 years of age at the time of her death; thus, Dr. Rushing arrives at a 32-year worklife expectancy by subtracting 33 from 65, her assumed age of retirement. Dr. Rushing testified that he did not use the worklife table because Debra's actual work history is a better indicator of her worklife expectancy.
[14] Dr. Kamerschen again averages the worklife expectancies found in Tables A-5 and A-6 of Worklife Estimates, Effects of Race and Education, Bulletin 2254, U.S. Dept. of Labor, Bureau of Labor Statistics, at 19-20 (U.S. Printing Office February, 1986).
[15] This figure represents Dr. Rushing's calculation of the annual inflation rate in the United States for the period 1950 to 1993.
[16] Dr. Kamerschen takes the figure of 1,400 hours per year from William H. Gauger and Kathryn E. Walker, The Dollar Value of Household Work, Information Bulletin 60, New York State College of Human Ecology, Cornell University, Ithaca, New York, 1980, Chart 1, at 4-5.
[17] Dr. Rushing does not give the precise starting salary figures that he used, indicating only that he relied upon the same source that Dr. Kamerschen relies upon, Money Income of Households, Families, and Persons in the United States: 1992, U.S. Bureau of the census, Current Population Reports, Series P-60, No. 184 (Washington, D.C. U.S. Government Printing Office, 1993).
[18] Dr. Rushing indicates that he has taken these worklife expectancies from Worklife Estimates, Effects of Race and Education, Bulletin 2254, U.S. Dept. of Labor, Bureau of Labor Statistics (1986), though he does not indicate which table he relies upon. Based upon the worklife expectancies he uses, however, it appears that he relied upon Table A-3, at page 14 of the publication.
[19] Dr. Kamerschen relies upon the same Census publication that Dr. Rushing relies upon. See supra n. 17.
[20] Here, Dr. Kamerschen averages the worklife expectancies in Tables A-2 and A-3 of Worklife Estimates, Effects of Race and Education, Bulletin 2254, U.S. Dept. of Labor, Bureau of Labor Statistics (U.S. Printing Office February, 1986).
[21] This remarkable disparity in opinion brings to mind an observation made by the Supreme Court many years ago: "Experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount." Winans v. New York & E.R. Co., 62 U.S. (21 How) 88, 101, 16 L.Ed. 68 (1858).
[22] His projection for Ashley's salary of $13,202.00 is $3,788.00 less than the $16,990.00 starting salary he projects for General. Likewise, his projection of Ashley's expected worklife of 28.15 years, is 7.7 years less than the worklife he projects for General.
[23] Worklife Estimates, Effects of Race and Education, Bulletin 2254, U.S. Dept. of Labor, Bureau of Labor Statistics (U.S. Printing Office February, 1986).
[24] Id. at 2.
[25] The primary case upon which the Government relies is Harden v. United States, 688 F.2d 1025 (5th Cir. Unit B 1982). See also Hartz v. United States, 415 F.2d 259 (5th Cir.1969); Newmann v. U.S., 938 F.2d 1258 (11th Cir.1991); Lewis v. United States, 718 F.Supp. 1525 (M.D.Ga.1988).
[26] Accord Miller v. Jenkins, 201 Ga.App. 825, 412 S.E.2d 555, 556 (1991); Jones v. Livingston, 203 Ga.App. 99, 416 S.E.2d 142, 146-47 (1992); Miller v. Jenkins, 201 Ga.App. 825, 412 S.E.2d 555, 556 (1991).
[27] Overruled on other grounds by Gilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421 (1974).
[28] Accord Calloway v. Rossman, 150 Ga.App. 381, 257 S.E.2d 913, 917 (1979); A-1 Bonding Service, Inc. v. Hunter, 125 Ga.App. 173, 186 S.E.2d 566, 571 (1971), affirmed, 229 Ga. 104, 189 S.E.2d 392 (1972); City of Macon v. Smith, 117 Ga.App. 363, 160 S.E.2d 622 (1968); Collins v. McPherson, 91 Ga.App. 347, 85 S.E.2d 552, 554-55 (1954).
[29] The jury charge in question is found at Suggested Pattern Jury Instructions, Volume I: Civil Cases, Part XI., Charge 9 (Carl Vinson Institute of Gov't, The Univ. of Ga., July, 1991) (emphasis added).
[30] In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business September 30, 1981.
[31] See also Newmann v. U.S., 938 F.2d 1258, 1264 (11th Cir.1991) (relying upon Harden for the proposition that income taxes should usually be deducted in a wrongful death case brought under the FTCA).
[32] See also O.C.G.A. § 51-12-5.1 (defining "punitive damages," and specifying when such an award is appropriate).
[33] This figure is based upon Dr. Kamerschen's calculation of Debra's lost gross income, which is before his deductions for personal expenses and taxes.
[34] This calculation is, of course, subject to the criticism set forth above; namely, that it is based upon a combination of worklife expectancies for females and for African Americans, which is a combination that the author of the report cautions against.
|
743 P.2d 1110 (1987)
Barbara Ruth PIPES and John H. Pipes, Wife and Husband, Appellants,
v.
Marion Kay SMITH and Aetna Casualty & Surety Company, Hartford, Connecticut, Appellees.
No. 65955.
Court of Appeals of Oklahoma, Division No. 3.
September 15, 1987.
Manville Redman, Lawton, for appellants.
Michael L. Darrah, and Paul B. Middleton, Oklahoma City, for appellees.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
HANSEN, Presiding Judge:
This case involves an automobile accident between Plaintiff/Appellant, Barbara Ruth Pipes and Defendant/Appellee, Marion Kay Smith. Defendant/Appellee, Aetna Casualty & Surety Company is the carrier of uninsured motorist coverage for Ms. Pipes. Liability was admitted by Ms. Smith and the case was tried on the issue of damages only. The jury returned a verdict in the amount of $6,828, of which $3,728 was designated as reasonable medical expenses.
Plaintiffs/Appellants, Barbara Ruth Pipes and John H. Pipes, moved for a new trial on grounds that damages awarded them were inadequate. Defendants filed no written response to Plaintiffs' motion. At the hearing the trial court overruled Plaintiffs' motion for new trial. However, on appeal they abandoned their contention of inadequate damages,[1] by failing to raise it as a proposition of error.[2]
*1111 On appeal Plaintiffs contend only that because Defendants failed to file a response to their motion for new trial, such motion should be deemed confessed pursuant to Rule 4, 12 O.S. 1987 Supp., Ch. 2, App., and as a result, they should be granted a new trial. We disagree.
Rule 4 e provides:
Any party opposing a motion, except those enumerated in Section c above, shall serve and file a brief or a list of authorities in opposition within fifteen (15) days of the service of the motion, or the motion shall be deemed confessed.
A motion for new trial is not one of the motions enumerated in Section c, however, the substance of Rule 4 focuses largely on motions of a pre-trial nature. In fact, Chapter 2 of Title 12 in its entirety approaches the procedural aspect of a lawsuit in an orderly fashion. Furthermore, even though it does not deal with the consequences of failure to respond to such a motion, Rule 17, dealing with motions for new trial, is found in Chapter 2 in a chronologically consistent location within the chapter, is a more specific rule than Rule 4 e.[3]
To treat a motion for new trial as confessed for failure to respond would be tantamount to confession of the ultimate issue in the matter. Such a penalty for a failure to respond to pre-trial motions is understandable because of the objective, during procedural stages of a lawsuit, to determine the legal and factual issues for trial.
When a motion for new trial is made, the trial issues have been determined; indeed, the trial has occurred and the movant is attempting to convince the trial court errors have been committed during the course of the proceedings. To allow a new trial on the basis of a non-response rather than on the merits basis claimed of errors committed at trial would be imprudent and a waste of judicial economy.
Title 12 O.S. 1987 Supp. § 651 enumerates nine grounds as a basis for a new trial, and such grounds are exclusive.[4] Had the trial court granted the motion upon grounds not provided by law, its ruling would have constituted an abuse of discretion.[5] The trial court did not abuse its discretion in overruling Plaintiffs' motion for new trial.
AFFIRMED.
HUNTER and BAILEY, JJ., concur.
NOTES
[1] Although there is no transcript of the hearing on the motion for new trial, Plaintiffs contend they also argued that Rule 4e provided a basis for a new trial.
[2] Sooner Drainboard Company v. Deaton, 512 P.2d 1185 (Okla. 1973).
[3] 58 O.B.J. 1702 (1987), cert pending, see Spirgis v. Quick Stores, Inc., dealing with summary judgment motions.
[4] First Nat. Bank of Taloga v. Farmers' State Guaranty Bank, 62 Okla. 30, 161 P. 1063 (1916).
[5] Federal Surety Co. v. Little, 156 Okla. 175, 9 P.2d 447 (1932).
|
People v High (2019 NY Slip Op 05563)
People v High
2019 NY Slip Op 05563
Decided on July 10, 2019
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 10, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
2017-01209
(Ind. No. 9200/15)
[*1]The People of the State of New York, respondent,
vRichard High, appellant.
Janet E. Sabel, New York, NY (Justine M. Luongo and Jose David Rodriguez-Gonzalez) for appellant
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Thomas M. Ross, and Marie John-Drigo of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew Sciarrino, J.), rendered January 3, 2017, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bryant, 28 NY3d 1094; People v Sanders, 25 NY3d 337). The defendant's valid waiver of his right to appeal precludes review of his contention regarding the denial of his suppression motion (see People v Callahan, 80 NY2d 273; People v Garcia, 165 AD3d 1280, 1281; People v Corbin, 121 AD3d 803).
The defendant's contentions regarding the final order of protection issued at the time of sentencing survive his appeal waiver (see People v Kennedy, 151 AD3d 1079, 1079; People v Bernardini, 142 AD3d 671, 671). However, the defendant's contentions are unpreserved for appellate review (see People v Nieves, 2 NY3d 310, 315-317; People v Elgut, 164 AD3d 1360, 1361; People v Smith, 83 AD3d 1213, 1213-1214), and we decline to exercise our interest of justice jurisdiction to review those contentions (see People v Anderson, 170 AD3d 739; People v Smith, 83 AD3d at 1214).
BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
|
Case: 15-11064 Document: 00513621649 Page: 1 Date Filed: 08/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-11064
Fifth Circuit
FILED
Summary Calendar August 3, 2016
Lyle W. Cayce
JOHN LITTLE; WENDY LITTLE, Clerk
Plaintiffs - Appellants
v.
PADRAIC OBRYAN; CAROLYN TIBILETTI; SHERRY CARSON,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-3089
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
Pro se plaintiffs John and Wendy Little sued three Texas state
employees in their individual capacities. The employees (“Defendants”) were
allegedly involved in suspending John’s state-issued electrician license for
failing to pay child support. The employees moved to dismiss under Fed. R.
Civ. P. 12(b)(1) and 12(b)(6). The district court granted the employees’ 12(b)(6)
motion and entered a Rule 54(b) judgment. The Littles timely appealed. After
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-11064 Document: 00513621649 Page: 2 Date Filed: 08/03/2016
No. 15-11064
reviewing the parties’ briefing, the record, and the applicable law, we find no
reversible error and AFFIRM.
BACKGROUND
Beginning March 13, 2013, and continuing at least through September
23, 2014, John failed to pay his monthly court ordered child support. On
February 23, 2014, John received notice that the Office of the Attorney General
of Texas (the “OAG”) was requesting that his Master Electrician’s license not
be renewed and advising him to contact the OAG to avoid nonrenewal.
Between February 23, 2014 and June 24, 2014, the Littles did not contact the
OAG regarding a payment arrangement to satisfy past due child support and
obtain a release. John’s license expired on June 24, 2014.
The Littles sued under 42 U.S.C. § 1983 and 42 U.S.C. § 1985, contending
that their constitutional rights were violated when Defendants suspended
John’s electrician license after he fell in arrears on paying child support, and
challenging provisions of the Texas Family Code as unconstitutional. The
Littles’ complaint alleged that they were denied due process and equal
protection of the laws, and also that they were retaliated against for filing suit.
The district court dismissed the lawsuit based on Defendants’ qualified
immunity and because the Littles failed to state a plausible constitutional
claim regarding the challenged sections of the Texas Family Code. This appeal
followed.
STANDARD OF REVIEW
“We review de novo motions to dismiss and motions for judgment on the
pleadings. The standard is the same for both. Viewing the facts as pled in the
light most favorable to the nonmovant, a motion to dismiss or for a judgment
on the pleadings should not be granted if a complaint provides enough facts to
state a claim to relief that is plausible on its face.” Jebaco, Inc., v. Harrah’s
2
Case: 15-11064 Document: 00513621649 Page: 3 Date Filed: 08/03/2016
No. 15-11064
Operating Co., 587 F.3d 314, 318 (5th Cir. 2003) (internal citation and
quotation marks omitted).
DISCUSSION
The Littles raise a bevy of claims. A number of those claims, however,
are unrelated to the district court’s order on appeal. Below, we discuss the
primary basis for the district court’s dismissal—qualified immunity—and
address the relevant claims—the Littles’ equal protection and procedural due
process claims under § 1983, their conspiracy equal protection claim under
§ 1985(3), their First Amendment retaliation claim, and their challenge to the
constitutionality of various Texas Family Code statutes.
A. Qualified Immunity
Qualified immunity shields government officials performing
discretionary functions “from civil damages liability as long as their actions
could reasonably have been thought consistent with the rights they are alleged
to have violated.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). To defeat
a defendant’s assertion of qualified immunity at the pleadings stage, the
plaintiff “must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). The plaintiff must also allege facts that
show that the violation was objectively unreasonable, that is, a reasonable
government official, in the light of clearly established law, would not have
acted so. 1 Anderson, 483 U.S. at 639–40.
B. Constitutional Claims
The district court found that the due process, equal protection, and
retaliation claims against Defendants failed because the Littles’ speculative
1 “The district court need not allow any discovery unless it finds that plaintiff has
supported his claim with sufficient precision and factual specificity[.]” Schultea v. Wood,
47 F.3d 1427, 1434 (5th Cir. 1995) (en banc).
3
Case: 15-11064 Document: 00513621649 Page: 4 Date Filed: 08/03/2016
No. 15-11064
and conclusory allegations did not identify specific conduct which could be
interpreted as a violation of the their constitutional rights. Therefore, the
district court concluded that Defendants were entitled to qualified immunity.
Based on our review of the record, we agree with the district court’s opinion
and affirm the dismissal of the claims against Defendants based on qualified
immunity.
C. Texas Statutes
The Littles challenge the constitutionality of the Tex. Fam. Code
§§ 232.0135, 157.263, and 154.068. As held above, the Littles have not alleged
any basis for concluding that Defendants’ conduct in applying the above-
referenced statutes was unconstitutional. Aside from Defendants’ alleged
unconstitutional conduct under the color of state law, the Littles offer no other
basis for holding that the challenged statutes are unconstitutional.
Accordingly, the district court did not err in dismissing the Littles’ complaint
for failure to state a plausible claim for relief.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
4
|
898 F.2d 155
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Vincent D. EDWARDS, Defendant-Appellant.
No. 89-3108.
United States Court of Appeals, Sixth Circuit.
March 15, 1990.
Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.
PER CURIAM.
1
Vincent Edwards appeals his sentence from his guilty plea for possession of 29.9 grams of crack cocaine with intent to distribute. 21 U.S.C. Sec. 841. Edwards contends that his guideline range was incorrectly calculated by the probation officer before his sentencing hearing.
2
On June 28, 1988, Edwards was indicted for possession of 412.12 grams of cocaine with intent to distribute, and for possession of 29.9 grams of crack cocaine with intent to distribute. On January 19, 1989, Edwards pled guilty to the second count, involving the crack cocaine, and the first count was dismissed. Edwards's guideline range was 210 to 262 months. Edwards received the minimum sentence of 210 months.
3
Edwards argues that the district court erroneously calculated his sentencing range. First, Edwards argues that the district court incorrectly found that he is a career offender under section 4B1.1 of the Sentencing Guidelines. In order to be classified as a career offender, a defendant must be at least 18 years old and have two prior felony convictions. The parties do not dispute the sufficiency of Edwards's first felony conviction, trafficking in cocaine in 1984. Edwards challenges the sufficiency of his two other convictions--one in Florida for possession of cocaine and one for burglary--as a basis for determining that he is a career offender.
4
Edwards waived this challenge by failing to raise it at his sentencing. At sentencing, the district court specifically warned Edwards that the presentence report classified him as a career offender, and no objection was made. The district court specifically asked Edwards if his attorney had reviewed the presentence report with him, and Edwards replied, "Yes."
5
It is the defendant who bears the burden to bring any factual findings in the presentence report to the attention of the district judge. United States v. Fry, 831 F.2d 664, 667-68 (6th Cir.1987). The determination that Edwards was a career offender was a factual finding. Edwards waived his ability to challenge this finding on appeal by failing to challenge the sufficiency of either the Florida drug conviction or the burglary conviction before the district judge.
6
Second, Edwards argues that the district court incorrectly calculated his offense level by including the drugs taken from his residence in calculating his offense level because he was not convicted of possession of these drugs. However, drugs that not specified in the count of the conviction are still included when calculating the offense level under the sentencing guidelines if they were part of the same course of conduct of part of a common scheme. U.S.S.G. Sec. 1B1.3, comment. Thus, the district court did not err in including drugs, which were part of Edwards's admitted distribution scheme, in his offense level, even though he was not actually convicted for possession of them.
7
The sentence of the district court is affirmed.
|
588 F.Supp. 814 (1984)
Marguerite ANDERSON, Plaintiff,
v.
Neale Henry REYNOLDS, et al., Defendants.
No. CV-R-80-117-ECR.
United States District Court, D. Nevada.
May 18, 1984.
*815 Philip A. Olsen, c/o Wood, Porter, Simon & Graham, Reno, Nev., for plaintiff.
E. Michael Kruse, Los Angeles, Cal., for defendants.
MEMORANDUM DECISION AND ORDER
EDWARD C. REED, Jr., District Judge.
Background
Plaintiff, Marguerite Anderson, has brought this action seeking to set aside a grant deed, executed by her to Defendant, Neale Henry Reynolds, on August 20, 1979. The grant deed is for a residential property known as 1165 Lakeshore Drive, Incline Village, Nevada, on the shore of Lake Tahoe. This property has a value of between $1,000,000 and $1,600,000. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332(a)(1).[1] A bench trial was held before this Court on January 12 and 13, 1984.
In early 1979, Plaintiff met Defendant, who was an aspiring but unemployed opera singer. Their contacts led to a close relationship. Plaintiff became Defendant's patron or sponsor, providing him with personal support for his living expenses, and with other aid in his quest to become an opera singer. Defendant reciprocated Plaintiff's favors by providing her with companionship and running errands for her. He also became an advisor in the handling of Plaintiff's business affairs, particularly with respect to the sale of some quite valuable property which Plaintiff desired to dispose of. Defendant essentially remained unemployed throughout the period here involved.
Prior to the spring of 1979 Plaintiff had always relied on professionals in the handling of her property and business affairs. She did not have the business acumen to take care of these matters alone, but through considerable experience had learned to seek professional advice and utilize it effectively. Leonard Wohletz, her accountant, testified that she knew how to deal effectively with the professionals, how to ask the right questions and, on that basis, how to reach proper decisions. The estimated value of Plaintiff's estate at that *816 time was between $15,000,000 and $20,000,000.
Although Plaintiff had a large income and many assets, she had chronic cash flow problems. She consulted with Mr. Wohletz, and was advised that she should give first consideration to the sale of the Lakeshore Drive property, which Plaintiff had only recently inherited. This property produced no income and was worth a great deal of money, and its sale would result in minimal capital gains taxes. Mr. Wohletz also advised Plaintiff to continue her efforts to sell some property located in Ojai, California, which likewise had a considerable value and in effect almost no income.
Plaintiff's professional relationship with Mr. Wohletz began in 1976. She consulted with him in person four to six times a year and much more frequently on the telephone. Plaintiff's attorney was Milton Manoukian of Carson City, with whom she also frequently consulted. It was not uncommon for Plaintiff's professional advisors to consult with one another relative to her affairs. Some time after the commencement of 1979, however, it became apparent to Mr. Wohletz and Mr. Manoukian that their roles as advisors to the Plaintiff were being diminished. Her contacts with them became much less frequent and open. It was clear that Plaintiff was obtaining advice on the management of her business affairs from Defendant. On at least one occasion, Defendant talked to Mr. Wohletz about Plaintiff's financial affairs. They discussed Plaintiff's assets and cash flow. This conversation took place with the authorization of Plaintiff, who advised Mr. Wohletz that Defendant was becoming involved in the management of her affairs.
Defendant had succeeded in gaining Plaintiff's confidence and trust and had convinced her that he had sufficient business expertise to advise and guide her in the conduct of her affairs. He persuaded Plaintiff to believe that he had solutions to her cash flow problems. Plaintiff was obviously prepared to follow his advice.
In this period of time, Plaintiff was also concerned with threats by her daughter to have her placed under a conservatorship, and, she believed, to have her placed in a mental hospital. Plaintiff's daughter was constantly making inquiry as to Plaintiff's property and business affairs.
Defendant led Plaintiff to believe that he was acquainted with many various show business celebrities who might be interested in purchasing the Lakeshore Drive property and the Ojai property as well. In particular, Defendant told Plaintiff that he was personally acquainted with Karl Malden and Paul Newman. On one occasion he advised her that Karl Malden was very interested in both properties and that she should call his business office in Los Angeles. When Plaintiff telephoned Mr. Malden's office she was advised that the personnel there had never heard of Plaintiff or her property. In August of 1979, Defendant told Plaintiff that Paul Newman, who was then in Hawaii, was interested in the properties. He asked her to arrange for him to go to Hawaii to see if he could sell the property to Mr. Newman. Plaintiff purchased the necessary airplane tickets and made arrangements for Defendant to go to Hawaii for this purpose.
In the course of advising Plaintiff as to the disposition of these properties Defendant sought to have Plaintiff deed the Lakeshore Drive property to him. He advised her that it was necessary to do this so that he could show the prospective buyers that he held title to the property and was authorized to deal with it. He claimed that some of the individuals who were interested in buying the property desired to deal with the principals to avoid the payment of real estate broker's commissions.[2] About the time of the proposed Hawaii trip Defendant was becoming more and more insistent that the Tahoe property be deeded to him so that he could more readily deal with it in Plaintiff's behalf.
Plaintiff verified that Paul Newman was in fact in Hawaii at that time. She then decided to follow the Defendant's advice *817 and deed the property to him. She did not seek the advice of the professionals who had been her advisors for a long period of time but rather decided to deed the property solely on Defendant's advice. Plaintiff and Defendant then went to some sort of an office (possibly that of a real estate broker or title company) in Gardnerville, Nevada, where the grant deed was prepared. Plaintiff then executed the grant deed and delivered it to Defendant. It is clear this Deed was executed for the purpose of enabling Defendant to act as Plaintiff's agent in the possible sale of the property and was never intended as a gift by Plaintiff to Defendant.
Defendant's effort to sell the Lakeshore Drive property to Paul Newman was apparently unsuccessful. However, Defendant continued to assure Plaintiff that he was seeking a buyer for the property and that there were good prospects. Plaintiff received a number of inquiries and calls respecting the property. The validity of these calls as an indication of genuine interest in purchase of the property became a matter of doubt in Plaintiff's mind, and she asked Defendant to return the grant deed. Defendant responded with excuses, claiming that he could not locate the deed, or that he would return it in person because it was unsafe to use the mails.
In the meantime, as summer passed into fall the close friendship between Plaintiff and Defendant deteriorated and was finally terminated by November of 1979. Plaintiff continued to demand return of the deed and it was at that time that Defendant took the deed to his attorney, Michael Kruse. Mr. Kruse advised Defendant that the grant deed should be immediately recorded and made arrangements to do so on November 27, 1979, advancing the necessary money to pay the Nevada real estate transfer tax.
By this time Plaintiff was highly concerned as to the fate of the grant deed. She was then apparently in the process of returning to the fold of her professional advisors, including Mr. Wohletz, Mr. Manoukian, and in addition, a firm known as the Nichols Law Corporation of San Francisco. It was on the advice of either Mr. Manoukian or the Nichols Law Corporation that Plaintiff then executed a quitclaim deed for the property to Silver State Land and Cattle Corporation of which she was the sole stockholder. The quitclaim deed was recorded on December 10, 1979, but Mr. Kruse had already beaten plaintiff to the courthouse, having recorded his deed some 13 days previously.
On or about January 15, 1980, Mr. Kruse and Defendant agreed that Defendant would execute a deed of trust of the property in favor of Mr. Kruse. A printed California form of deed of trust was used. The underlying obligation, however, was set forth in a curious handwritten document (in the hand of Defendant) which stated that Mr. Kruse had agreed to represent Defendant in the sale of the Lakeshore Drive property, including the responsibility to pay the costs of sale, real estate broker's commissions, finder's fees, legal services and closing costs. The document also recited that in return for these services, Mr. Kruse was to receive 20% of the proceeds of the sale. In view of the valuation placed on the property by Mr. Kruse in his testimony it is unclear how they arrived at the supposed $375,000 figure which the deed of trust was supposed to secure. Whether this deed of trust was given for the purpose of encumbering the property to defeat Mrs. Anderson's efforts to regain it or to insure Mr. Kruse payment of his fees and payment of the alleged broker's commissions is not entirely clear, but the former seems more likely than the latter.[3]
In late January of 1980 Defendant contacted one John Fuller with the intent of executing and recording of an additional deed of trust to further encumber the property. Defendant again prepared, in his own handwriting, a statement which was *818 supposed to be the obligation to be secured by the Fuller deed of trust. That deed of trust recited that Defendant had received $200,000 in exchange for the second deed of trust to Fuller, which sum was to be deposited in Defendant's numbered Swiss bank account. The monies received were purportedly to be used to fund Defendant's international business. There is no credible evidence in this record to support the proposition that there was any value given for the Fuller deed of trust.[4]
Mr. Kruse did not cause either his deed of trust or the Fuller deed of trust to be recorded until March 31, 1980. After that date the Defendant signed other deeds of trust in favor of other individuals in an effort to further cloud the title to the subject property and to thwart Mrs. Anderson's efforts to reclaim title.
Analysis
The elements of intentional fraudulent misrepresentation are:
(1) A false representation made by the defendant;
(2) Knowledge or belief on the part of the defendant that the representation is false;
(3) An intention to induce the plaintiff to act or to refrain from acting in reliance on the misrepresentation;
(4) Justifiable reliance upon the representation on the part of the plaintiff in taking action or refraining from it; and
(5) Damage to the plaintiff, resulting from such reliance.
Lubbe v. Barba, 91 Nev. 596, 540 P.2d 115, 117 (1975).[5]
A promise made without the intent to perform it is fraudulent. See Sharp v. Idaho Investment Corp., 95 Idaho 113, 504 P.2d 386, 395 (1972); Steiger v. Commerce Acceptance of Oklahoma City, Inc., 455 P.2d 81, 86 (Okl.1969); Elizaga v. Kaiser Foundation Hospitals, Inc., 259 Or. 542, 487 P.2d 870, 874 (1971); Employer's Liability Assurance Corp. v. Lunt, 82 Ariz. 320, 313 P.2d 393, 396 (1957); 37 C.J.S. Fraud § 12 at 237-39 (1943). If the execution of a contract is induced by fraud, the contract is voidable. Havas v. Alger, 85 Nev. 627, 461 P.2d 857, 859 (1969). A claim of fraud must be supported by clear and convincing evidence. Lubbe, supra, 540 P.2d at 117.
In the present case, it is clear that defendant represented to the plaintiff that he would deal with the Lakeshore Drive property on her behalf and as her agent in an effort to sell it for her. It is also clear that he knew that these representations were false; that he intended that the plaintiff would rely on his misrepresentations and convey the Lakeshore Drive property to him; that defendant intended to keep the property as his own at the time he made these misrepresentations; and that plaintiff relied on defendant's misrepresentations in executing and delivering the grant deed to the Lakeshore Drive property.
The facts of this case, including Plaintiff's increasing use of Plaintiff's advice on her business affairs in 1979, together with the corresponding decrease in the use that she made of her professional advisors during that period, clearly indicates that Defendant was acting as a fiduciary in these matters. Under such circumstances, Plaintiff was entitled to regard her business relationship with the defendant as one of trust and confidence, and her reliance on the representations made by Defendant was justifiable. Sanguinetti v. Strecker, 94 Nev. 200, 577 P.2d 404, 409 (1978).[6] Plaintiff has been damaged as a result of being deprived of her property; this loss *819 was a proximate result of Defendant's misrepresentations. We thus conclude that Plaintiff has established by clear and convincing evidence that Defendant has fraudulently obtained the Lakeshore Drive property from her. Therefore, the grant deed by which he obtained the property should be set aside. See Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 619 P.2d 816 (1980).
The foregoing shall constitute this Court's Findings of Fact and Conclusions of Law.
IT IS, THEREFORE, HEREBY ORDERED that a Judgment and Decree of this Court shall be entered that:
1. The Grant Deed of 1165 Lakeshore Drive, Incline Village, Nevada, executed by Plaintiff to Defendant on August 20, 1979, and recorded as Document No. 643534 in the Official Records of Washoe County, Nevada on November 27, 1979, is null and void and of no force or effect whatever.
2. Defendant Neale Henry Reynolds has no right, title or interest in the said property.
Attached hereto as Exhibit "A" and incorporated herein by reference is a legal description of the said property which is the subject of this Order.
EXHIBIT "A"
All that certain lot, piece or parcel of land situate in the County of Washoe, State of Nevada, being more particularly described as follows:
Commencing at the United States Government Meander corner of Lake Tahoe, common to Sections 22 and 23, Township 16 North, Range 18 East, M.D.B. & M., from which the section corner common to Sections 14, 15, 22 and 23, Township 16 North, Range 18 East, M.D.B. & M., bears North 3372.60 feet; thence along the meander line of Lake Tahoe the four following courses and distances: South 49° East 924 feet; South 35° East 561.00 feet; South 71° East 316.8 feet; South 46° East 428.25 feet to the point of beginning, said point being the Southeast corner of the parcel conveyed to William Washburn by deed recorded in Book 119, Page 187, File No. 84028, Deed Records; thence North 19° 43' East along the Easterly line of said Washburn parcel 303.79 feet, more or less, to the Westerly line of State Highway Route 28; thence South 16° 12' East along said Westerly highway right of way line 263.0 feet to the Northwest corner of that parcel of land described in the deed from Cummings to Tush, recorded August 24, 1961, under Filing No. 342758, Deed Records; thence South 19° 43' West to Lake Tahoe; thence Northwesterly along the lake shore to a line drawn South 19° 43' West from the point of beginning; thence North 19° 43' East to the point of beginning.
NOTES
[1] Plaintiff is a citizen of Nevada, and the defendants are citizens of different states.
[2] Defendant was not a licensed real estate broker or salesman.
[3] It appears that subsequent to the filing of this action, plaintiff has been able to acquire Mr. Kruse's deed of trust for a figure of approximately $7,500 and the claim originally asserted against Mr. Kruse as a co-defendant has been settled on that basis.
[4] Plaintiff's action against Fuller, as a defendant herein, has likewise been settled by Fuller assigning his deed of trust to Plaintiff for some $7,500.
[5] See infra note 6.
[6] We note that the Nevada Supreme Court has held that justifiable reliance need not be established "when a party asserts misrepresentation as grounds for rescission of a contract." Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 619 P.2d 816, 818 (1980). Nevertheless, we find that justifiable reliance has in fact been shown in this case.
|
995 F.2d 280
143 L.R.R.M. (BNA) 2569, 301 U.S.App.D.C.380, 61 USLW 2791,125 Lab.Cas. P 10,734, 25 Fed.R.Serv.3d 1297,17 Employee Benefits Cas. 1354,Pens. Plan Guide P 23879R
Captain Stewart W. BECKETT, et al., Appellants,v.AIR LINE PILOTS ASSOCIATION, Appellee.
No. 92-7029.
United States Court of Appeals,District of Columbia Circuit.
Argued April 20, 1993.Decided June 15, 1993.Order Denying Rehearing and RemandingCase July 23, 1993.
Appeal from the United States District Court for the District of Columbia.
Robert F. Gore, argued the cause for appellants.
Jerry D. Anker argued the cause for appellee. With him on the brief were Gary Green, Clay Warner and Michael E. Abram.
Before: EDWARDS, RUTH BADER GINSBURG and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
1
Early in 1990, the Air Line Pilots Association ("ALPA") received a large payment of funds from Pan American Airways, Inc. ("Pan Am"), pursuant to a 1985 grievance settlement. Under the settlement, Pan Am agreed to make Savings Annuitization Payouts ("SAP"), in lieu of disputed pension contributions, on behalf of eligible Pan Am pilots. ALPA was to receive the SAP funds and then distribute the monies to eligible pilots. A dispute arose over the payments, however, and a lawsuit, Fagerland v. Air Line Pilots Ass'n, Int'l, Civ. Action No. 86-3410, was filed in District Court against ALPA by a group of former Pan Am pilots challenging the method used by ALPA to determine each pilot's share of the payout. In December 1989, the parties in Fagerland entered into a settlement agreement, under which the SAP funds were to be transferred to a trust account established and administered by ALPA, as trustee and agent, for distribution of the funds to the eligible pilot beneficiaries. The settlement agreement was approved by the District Court in a Consent Decree, 1989 WL 298428.
2
The present dispute involves a claim by 49 former pilots of Pan Am who are beneficiaries under the Fagerland Consent Decree. These pilots, appellants in this action, contend that, in administering the trust established for the distribution of the SAP funds, ALPA violated the Fagerland settlement agreement and Consent Decree. In particular, appellants assert that ALPA improperly withheld monies they were required to distribute to the appellants on the ground that, while serving as Pan Am pilots, the appellants had failed to pay certain agency shop fees to ALPA to support, inter alia, a sympathy strike by pilots at Eastern Air Lines, Inc. ("Eastern"). ALPA retained the appellants' SAP funds as a setoff against the delinquent agency shop fees allegedly due to ALPA. Appellants now seek to secure their shares of the SAP monies, alleging breach of the settlement agreement and Consent Decree, and violations of trust law, the Employee Retirement and Income Security Act ("ERISA") and the Railway Labor Act ("RLA").
3
The District Court granted summary judgment against appellants on all claims. We reverse. First, we hold that appellants' claim constitutes an action to enforce a consent decree, properly brought by intended beneficiaries of that decree; therefore, the District Court had jurisdiction over appellants' trust claim pursuant to the well-established principle that a trial court retains jurisdiction to enforce its consent decrees. Second, we hold that, as trustee and agent under the Fagerland Consent Decree, ALPA had no right to divert for its own use monies required to be transferred to beneficiaries under the settlement trust.
I. BACKGROUND
4
A. Assessments for the Eastern Sympathy Strike
5
At all times relevant to this appeal, ALPA, a labor organization within the meaning of the RLA, 45 U.S.C. § 151, Sixth (1988), represented airline pilots employed by the now-bankrupt Pan Am. ALPA's collective bargaining agreement with Pan Am contained an agency shop agreement, which, as a condition of employment, required pilots who chose not to join the union to pay a "service charge" to ALPA equivalent to its regular monthly dues, initiation fee and periodic assessments. See Agency Shop Agreement at 1, reprinted in Appendix ("A.") 71. Under the agency shop agreement, if a pilot became delinquent in his payments, ALPA's Treasurer was required to notify the pilot of his delinquency and advise him that he was "subject to discharge." Id. If the pilot did not make the necessary payments, the agency shop agreement required the Treasurer to "certify" the delinquency to the pilot's employer, who was then obligated to discharge the pilot. Id. A pilot whose discharge had been requested was permitted to file a protest if he believed that the agency shop agreement had "not been properly interpreted or applied." Id. at 2. Protests were ultimately subject to binding arbitration.
6
In March 1989, the International Association of Machinists and Aerospace Workers Union ("IAM"), the bargaining agent for the mechanics at Eastern, began a lawful strike against that airline. In support of the IAM, the ALPA pilots at Eastern also went on strike. ALPA's Executive Board subsequently authorized $2,400 per month in strike benefits for the Eastern pilots, to be funded by monthly assessments charged to ALPA members. A majority of ALPA's membership approved the assessments by secret vote, and voted again in September and December 1989 to continue the assessments. The assessments were discontinued at the end of February 1990.
7
From May 1989 to March 1990, ALPA levied eleven strike assessments to fund the benefits for the striking Eastern pilots. A number of the non-union Pan Am pilots refused to pay the assessments. By March 1990, at least 328 Pan Am pilots, including 46 of the 49 appellants, were delinquent in the payment of their assessments. (In addition, 24 of the appellants were delinquent in the payment of agency fees other than the Eastern strike assessments.) ALPA sent delinquency letters to five of the 46 appellants whose assessment payments were overdue; no other efforts were made by ALPA to pursue claims under the agency shop agreement.
B. The Fagerland Settlement Monies
8
The long series of events leading to this action began in early 1990, when ALPA received a large payment from Pan Am under the terms of a 1985 grievance settlement. The settlement resolved a grievance dispute arising out of Pan Am's decision in 1984 to cease contributions to the "A Plan," a pension plan it had established for its pilots. Under the settlement, reached in February 1985, Pan Am agreed to make a SAP of $35.125 million to Pan Am pilots who had participated in the A Plan prior to January 1, 1984 ("eligible pilots"). The SAP was to be paid in equal, yearly installments of $7.025 million from 1986 to 1990. The settlement required Pan Am to pay the SAP to ALPA, which was then to distribute the funds to the eligible Pan Am pilots. See Pan Am-ALPA Settlement at 3, reprinted in A. 47.
9
Before ALPA began distributing the settlement, a group of former Pan Am pilots who had been members of the "A Plan" filed suit against ALPA in the United States District Court for the District of Columbia, challenging the method ALPA used to determine each pilot's share of the payout. As a result of the suit, Fagerland v. Air Line Pilots Ass'n, Int'l, Civ.Action No. 86-3410, the SAP fund was placed in escrow and no distributions were made. In December 1989, the parties in Fagerland entered into a settlement agreement, which the District Court approved in a Consent Decree. See Settlement Agreement and Consent Decree, reprinted in A. 55 ("Fagerland Consent Decree" or "Consent Decree").
10
Under the Consent Decree, the funds held in escrow were to be transferred "to a trust account to be established by defendant ALPA, which will act as trustee and agent for distribution of this fund to the beneficiaries." Id. at 7. The Consent Decree provided that ALPA, "as trustee and agent," was first to distribute a specified portion of the funds to the Fagerland plaintiffs, and was then to distribute the remaining funds "to eligible [Pan Am] pilots who are not plaintiff class members pursuant to the instructions of the Pan Am [Master Executive Council]."1 Id. at 8-11. The "eligible pilots" included appellants. The distribution plan set out in the Consent Decree applied to the four annual $7.025 million payments that Pan Am had already made (which were at the time held in escrow), and to the final payment Pan Am was scheduled to make in 1990.
11
In February 1990, after receiving the SAP funds from the first four annual payments, the Pan Am MEC adopted a resolution stating that:
12
all [Pan Am] pilots who are delinquent in dues, service charge or assessment payments to ALPA ... as of February 20, 1990 ... shall receive their full [SAP] payment minus all the money owed to ALPA in the form of back dues, service charges and/or assessments.
13
Plaintiffs' Statement of Material Facts to Which There is No Genuine Issue at 7, reprinted in A. 35. In March 1990, after the Fagerland plaintiffs had received their share of the SAP fund, ALPA distributed the remaining funds to eligible Pan Am pilots. In accordance with the MEC resolution, ALPA mailed SAP distribution checks to the pilots that included their share of the distribution from the first four Pan Am payments, less any alleged delinquency to ALPA as of February 20, 1990. ALPA withheld a total of $562,927.61 from the SAP distribution to satisfy the debts of delinquent Pan Am pilots, including $139,306.95 from appellants' share of the distribution ($100,160.47 of which constituted strike assessments, the remainder constituting other overdue fees). In December 1990, after Pan Am paid ALPA the last $7.025 million installment under the 1985 settlement agreement, ALPA made the final distribution of SAP funds to Pan Am pilots, and withheld an additional $22,340.31 from 13 of the appellants, as a further setoff for delinquency. In sum, ALPA withheld $161,647.26 from appellants.
C. The District Court's Decision
14
On August 7, 1990, appellants filed this action in the District Court, seeking to recover the settlement money withheld by ALPA. Appellants alleged, inter alia, that by withholding the SAP funds, ALPA had, in addition to violating the terms of the Fagerland settlement agreement and Consent Decree, (1) violated the anti-alienation requirement and the fiduciary duty imposed by ERISA, 29 U.S.C. §§ 1002(21)(A), 1056(d)(1) (1988); (2) breached a fiduciary duty by diverting, for its own uses, funds it held in trust for appellants and other Pan Am pilots pursuant to the Consent Decree; and (3) violated various of appellants' rights under the RLA. After discovery, both parties moved for summary judgment.
15
The District Court granted summary judgment in favor of ALPA on all claims. Beckett v. Air Line Pilots Ass'n, Int'l, 783 F.Supp. 657 (D.D.C.1992), reprinted in A. 165. The court first held that appellants' ERISA claims were "not well-founded," noting that ERISA applies "only to pension and welfare plans.... [and] [t]he mere fact that the payments were made pursuant to the settlement of a dispute relating to a pension plan does not bring them within the coverage of ERISA." Id., 783 F.Supp. at 661. The trial court then dismissed the breach of fiduciary duty claim for lack of pendent jurisdiction. The court further noted that, even if it had jurisdiction, the claim was meritless, because the Fagerland Consent Decree did not establish a trust on behalf of appellants, who were not parties to the Fagerland suit. Id. at 661.
16
The trial court then ruled against appellants on the merits of the RLA claims. The court began by rejecting appellants' claim that ALPA had violated the RLA by resorting to self-help rather than exercising its rights under the agency shop enforcement procedures of the collective bargaining agreement. The District Court observed that the enforcement procedures were optional rather than mandatory, and that, therefore, ALPA "had no obligation ... to seek discharge of the pilots who refused to pay the service fees or assessments." Id. at 662. The trial court further held that, under the Supreme Court's recent decision in Lehnert v. Ferris Faculty Ass'n, --- U.S. ----, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991), the RLA permitted ALPA to charge strike assessments to the non-union Pan Am pilots to support the strike by the Eastern pilots' bargaining unit. Beckett, 783 F.Supp. at 663.
17
This appeal followed.
II. DISCUSSION
A. Standard of Review
18
This is an appeal from a grant of summary judgment. Under FED.R.CIV.P. 56(c), summary judgment is appropriate only "where there is no genuine issue of material fact, and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law." Sherwood v. Washington Post, 871 F.2d 1144, 1146 (D.C.Cir.1989) (per curiam) (citation and internal quotations omitted). Because the material facts are not in dispute, our task is to ensure that the District Court correctly applied the relevant law to the undisputed facts. See Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.Cir.1990) (per curiam). In addition, our review of the District Court's interpretation of the Fagerland Consent Decree is de novo. See United States v. Western Elec. Co., Inc., 907 F.2d 160, 164 (D.C.Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991).
19
B. Potential Theories of Recovery in This Case
20
This case presents a number of potential theories of recovery. Despite the many arguments before us, however, we conclude that only one theory warrants serious consideration. Accordingly, as discussed below, we hold that, under the Fagerland settlement and Consent Decree, ALPA held the disputed SAP funds in trust for the benefit of appellants, and that it violated its fiduciary duty to appellants when it offset their alleged debts to ALPA against those funds. We also hold that the District Court had jurisdiction to enforce the Consent Decree.
21
We begin by noting the theories in this case that we need not reach.2 First, this action could have been filed in the District Court on the theory that ALPA breached its duty of fair representation to the non-union pilots under the RLA. See Karahalios v. National Fed'n of Fed. Employees, Local 1263, 489 U.S. 527, 534, 109 S.Ct. 1282, 1287, 103 L.Ed.2d 539 (1989) (noting that Supreme Court has implied a duty of fair representation under the RLA; citing Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944)). However, both sides agree that appellants failed to pursue this theory of the case, and, therefore, we have no occasion to address it.
22
Second, appellants seem to contend that section 2, Eleventh (a) of the RLA requires ALPA to exhaust the agency shop procedures set out in the collective bargaining agreement--specifically, to seek discharge of delinquent pilots--before resorting to self-help to collect monies due. See 45 U.S.C. § 152, Eleventh (a) (1988). However, appellants' counsel conceded at oral argument that no court has ever interpreted section 2, Eleventh (a) to impose such an exhaustion requirement. We intimate no position on this issue.
23
Third, appellants contend that the RLA prohibits ALPA from requiring non-union pilots to help pay for a union strike in another bargaining unit. This theory of the case poses two complex issues. First, we would have to decide whether appellants must arbitrate this issue before filing suit. There is a split in the circuits on this question. Compare Hudson v. Chicago Teachers Union, Local No. 1, 922 F.2d 1306, 1314 (7th Cir.) (holding that non-union members must arbitrate disputes over calculation of agency shop fee), cert. denied, --- U.S. ----, 111 S.Ct. 2852, 115 L.Ed.2d 1020 (1991), with Tierney v. City of Toledo, 917 F.2d 927, 940 (6th Cir.1990) (requiring union to remove exhaustion requirement from its arbitration procedures for contesting calculation of agency shop fee). Second, even if this claim is properly before us, we would have to decide whether the Supreme Court's decision in Lehnert v. Ferris Faculty Ass'n, supra, permits the assessments ALPA charged to appellants. As with the section 2, Eleventh (a) claim, we need not reach these issues.
24
Fourth, it is possible that the fiduciary duty claim arising from the trust purportedly created by the Fagerland Consent Decree could be entertained as a state law claim pendent to appellants' RLA claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). But this theory of the case also has its difficulties. As an initial matter, appellants failed to preserve this claim on appeal because they waited until their reply brief to challenge the District Court's ruling that it did not have pendent jurisdiction over the fiduciary duty claim. "This Court, of course, generally refuses to entertain arguments raised for the first time in an appellant's reply brief." Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C.Cir.1992). More important, however, it is unnecessary to consider this theory of the case, because the District Court had jurisdiction over appellants' trust claim pursuant to the well-established principle, discussed below, that a district court retains jurisdiction under federal law to enforce its consent decree.
C. The Trust Theory
25
The one viable theory of this case is appellants' trust claim. We recognize that appellants have presented a somewhat unartful description of the claim, appearing to focus their trust claim on general principles of state common law; and both sides to the dispute seem to believe that the District Court's jurisdiction over the trust claim depended on the doctrine of pendent jurisdiction. We see this case somewhat differently.
26
We agree with appellants that the Fagerland Consent Decree established a trust, pursuant to which ALPA, as trustee and agent, was to hold and then distribute the disputed funds solely for the benefit of appellants and other eligible Pan Am pilots. Further, we agree that, under fundamental principles of trust law, which we must look to in order to interpret the Consent Decree, ALPA breached its fiduciary duty to appellants when it retained a portion of the trust funds as a setoff against appellants' alleged debts to ALPA. However, we see appellants' trust claim as a federal claim because it arises out of the Consent Decree, and, therefore, we conclude that the pendent jurisdiction doctrine is not on point. The parties did not suggest the precise formulation of the trust claim as we now characterize it. Nevertheless, the core issues surrounding the trust theory--whether a trust was created, and, if so, whether the trustee breached its fiduciary duties to the beneficiaries--were raised by the parties and decided by the trial court and debated by the parties on appeal. In these circumstances, we consider it appropriate to reach the merits of the trust claim.
1. Jurisdiction
27
The jurisdictional issue need not long detain us. Appellants claim that ALPA, as trustee, breached its fiduciary duty in connection with the trust purportedly created by the Consent Decree. This claim constitutes, in essence, an action to enforce that Consent Decree. The District Court therefore had jurisdiction over appellants' trust claim pursuant to the well-established principle that a trial court retains jurisdiction to enforce consent decrees and settlement agreements. See, e.g., Hook v. State of Arizona, Dep't of Corrections, 972 F.2d 1012, 1014 (9th Cir.1992); Picon v. Morris, 933 F.2d 660, 662 (8th Cir.1991); Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976).3 Indeed, the parties to the Fagerland Consent Decree acknowledged this principle. In the Consent Decree approving the settlement, the District Court expressly retained jurisdiction over the action in order to provide for enforcement, if necessary. See Consent Decree at 14 ("The Court will retain jurisd[ ]iction over this case to enforce the terms of this Settlement Agreement and Consent Decree...."). And, because the District Court granted summary judgment against appellants as to all claims, this court has jurisdiction over the appeal. See 28 U.S.C. § 1291 (1988).
28
2. Whether Appellants May Sue to Enforce the Consent Decree
29
Although the District Court plainly had jurisdiction to enforce the terms of the Consent Decree, a slightly more difficult question remains: whether appellants, who were not "parties" to the Consent Decree, may nevertheless sue to enforce its terms. We hold that because they are direct beneficiaries of a trust created by the Consent Decree, they may do so.
30
We begin by noting that it is already recognized that "intended third party beneficiaries of a consent decree have standing to enforce the decree." Hook, 972 F.2d at 1014; accord Berger v. Heckler, 771 F.2d 1556, 1565-66 (2d Cir.1985). This is so because consent decrees are generally construed according to the basic principles of contract law, see United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975), and it is a fundamental principle of contract law that parties to a contract may create enforceable contract rights in a third party beneficiary. See, e.g., RESTATEMENT (SECOND) OF CONTRACTS § 304 (1981); In re Spong, 661 F.2d 6, 10 (2d Cir.1981) ("In a third party beneficiary contract, benefits flow to both the promisee and the third party, and either may sue to enforce the contract.").
31
The principle that an intended third party beneficiary may sue to enforce a consent decree naturally extends, we think, to allowing the beneficiary of a trust created by a consent decree to sue for enforcement of the consent decree, even where that beneficiary was not a party to the consent decree. "In many cases it is immaterial whether a trust is created or a contract is made for the benefit of a third party.... [because] the beneficiary of a contract, as well as the beneficiary of a trust, has rights which he can enforce." 1 AUSTIN W. SCOTT, THE LAW OF TRUSTS § 14.3 (3d ed. 1967). Just as an intended third party beneficiary may sue to enforce a contract, it is equally fundamental that the beneficiary of a trust may maintain a suit to compel the trustee to perform his duties as trustee or to redress a breach of trust. See RESTATEMENT (SECOND) OF TRUSTS § 199 (1959).
32
The issue thus joined is whether the Fagerland Consent Decree created a trust with appellants as beneficiaries. Under the terms of the Consent Decree, the Pan Am SAP funds held in escrow pending the outcome of the Fagerland litigation were to be transferred "to a trust account to be established by defendant ALPA, which will act as trustee and agent for distribution of this fund to the beneficiaries." Consent Decree at 7 (emphasis added). ALPA's mandatory duties as "trustee and agent" were first to distribute a specified portion of the funds to the Fagerland plaintiffs, and then to distribute all remaining funds "to eligible pilots [including appellants] who are not plaintiff class members pursuant to the instructions of the Pan Am MEC." Id. at 8-11 (emphasis added). There is no indication in the Consent Decree that ALPA had any right to use the funds for any purpose of its own.
33
After examining these features of the Consent Decree, we conclude with little difficulty that the Consent Decree created a trust, with ALPA as trustee and appellants (among others) as the beneficiaries. A trust is
34
a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.
35
RESTATEMENT (SECOND) OF TRUSTS, supra, § 2; see also, e.g., United States v. Kingsley, 851 F.2d 16, 20-21 (1st Cir.1988) (relying on Restatement definition to determine whether a trust has been created); Coleman v. Golkin, Bomback & Co., Inc., 562 F.2d 166, 168-69 (2d Cir.1977) (same). The Fagerland Consent Decree establishes just the sort of trust relationship described in the Restatement. Pursuant to the Consent Decree, ALPA held the title to the Pan Am SAP funds for the benefit of the Fagerland plaintiffs and the other Pan Am pilots, including appellants, eligible to receive those funds. Further, the Consent Decree expressly imposed on ALPA the duty of distributing the settlement payments to Pan Am pilots who had participated in the A Plan. Finally, we think it is clear that the language of the Consent Decree manifests the requisite intention to create a trust. See RESTATEMENT (SECOND) OF TRUSTS, supra, § 24(1) (necessary manifestation of intention to create a trust may be made by written words). An expressed intention to create a trust may be revealed by, inter alia, the articulation of the essential elements of a trust, see id. § 2(1) cmt. h (essential elements of a trust are a trustee, a beneficiary and a trust property), and "the specifics necessary to implement and administer the trust." 76 AM.JUR.2D Trusts § 65 (1992). The Consent Decree sets out the elements of a trust, and makes clear the "specifics" for implementing and administering the trust; we are thus satisfied that a trust was indeed created. And because appellants are beneficiaries of that trust, they may sue to enforce the duties owed to them by ALPA as trustee.
36
ALPA contends, unpersuasively, that the Fagerland Consent Decree did not create a trust because, rather than establishing any enforceable duties, it conferred upon ALPA the "sole" discretion to distribute the Pan Am SAP funds. Brief for Appellee at 22. ALPA points out, purportedly in its favor, that the Consent Decree provides that the available Pan Am SAP "sums" "shall be distributed to eligible pilots ... pursuant to the instructions of the Pan Am MEC." Consent Decree at 9, 11 (emphasis added). This language provides no comfort to ALPA. The mandatory "shall" makes clear that the disputed "sums" must be distributed to the eligible pilots, including appellants. The Consent Decree merely leaves ALPA the discretion to choose an appropriate arrangement for distributing those "sums" among the eligible pilots. This discretion is hardly remarkable as a matter of trust law; the terms of a trust often give the trustee discretion in carrying out a duty, while leaving the duty itself mandatory. See 3 SCOTT, supra, § 187 ("[W]here [the trustee] is directed to exercise a power, the time and manner of its exercise may be left to his discretion."). Absolutely nothing in the language quoted by ALPA, or in any other part of the Consent Decree, confers on ALPA the right to use any of the SAP funds for its own purposes. We therefore reject ALPA's contention that the Consent Decree did not manifest an intention to create enforceable duties.
37
Our ruling that appellants may maintain an action to enforce the Consent Decree is supported by FED.R.CIV.P. 71. Rule 71 provides in relevant part that "[w]hen an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party...." The courts that have allowed non-parties to sue to enforce a consent decree or other court order as intended third party beneficiaries have relied in large part on Rule 71. See, e.g., Hook, 972 F.2d at 1014; Washington Hosp. v. White, 889 F.2d 1294, 1299 (3d Cir.1989). While the precise contours of Rule 71 may remain unclear, we think that the Rule comfortably applies to appellants in this case.4
38
Although the foregoing analysis disposes of the question of whether appellants may bring this action, we pause to distinguish some language from a Supreme Court case that may, at first glance, be interpreted as running against our decision. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). In Blue Chip Stamps, the Court stated that "a well-settled line of authority from this Court establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it." Id. at 750, 95 S.Ct. at 1932. Despite this seemingly sweeping prohibition on suits by non-parties to a consent decree, we, like the Ninth Circuit, read Blue Chip Stamps to "prohibit[ ] only incidental third party beneficiaries from suing to enforce a consent decree." Hook, 972 F.2d at 1015; see also Berger, 771 F.2d at 1565 ("[W]e think that [Blue Chip Stamps ] was not intended to preclude nonparties from intervening to enforce a consent decree where otherwise authorized by the federal rules of civil procedure."). Blue Chip Stamps, therefore, is not applicable to this case.
39
Five considerations lead us to conclude that the Blue Chip Stamps language should be read narrowly. First, the primary question before the Court in Blue Chip Stamps was far afield from the issue we face today: whether a consent decree requiring one party to offer stock to a third party was sufficient under federal securities laws to make the third party a "purchaser or seller" who would have standing to sue pursuant to Rule 10b-5 of the Securities and Exchange Commission.
40
Second, to the extent that Blue Chip Stamps is understood as involving a private party's attempt to bring an action under a consent decree that benefited it, see Hook, 972 F.2d at 1015, it bears noting that the consent decree resulted from a civil antitrust action brought by the Government. Only the Government can seek enforcement of its consent decrees, see, e.g., Dahl, Inc. v. Roy Cooper Co., Inc., 448 F.2d 17, 20 (9th Cir.1971); therefore, even if the Government intended its consent decree to benefit a third party, that party could not enforce it unless the decree so provided. Given this rule, the language against third party enforcement in Blue Chip Stamps must be read in context and with caution, because that case involved a Government-obtained consent decree. Third, and closely related, our interpretation of Blue Chip Stamps accords with the basic contract principle that third party beneficiaries of a Government contract are generally assumed to be merely incidental beneficiaries, and may not enforce the contract absent clear intent to the contrary. See RESTATEMENT (SECOND) OF CONTRACTS, supra, § 313(2) & cmt. a. The private parties in Blue Chip Stamps were therefore incidental third party beneficiaries, and had no enforcement rights under the consent decree. See Hook, 972 F.2d at 1015 (adopting this analysis).
41
Fourth, were we to construe Blue Chip Stamps broadly, we would eviscerate Rule 71 in the context of consent decree enforcements. The Court in Blue Chip Stamps did not even mention Rule 71, and we are not prepared, without a clearer signal, to assume that the Court meant to narrow Rule 71 so significantly. See Hook, 972 F.2d at 1015. Fifth, the authorities cited by the Court in Blue Chip Stamps do not stand for the extremely broad proposition that the Court's language might be read to suggest. See Blue Chip Stamps, 421 U.S. at 750, 95 S.Ct. at 1932 (citing United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971); Buckeye Coal & Ry. Co. v. Hocking Valley Ry. Co., 269 U.S. 42, 46 S.Ct. 61, 70 L.Ed. 155 (1925)). In Armour, the Court held that a corporation did not violate the terms of a particular consent decree to which it was not a party by acquiring another corporation that was a party to the consent decree. No language in that opinion suggests that non-parties intended to be benefited by a consent decree cannot sue to enforce the decree. In Buckeye, the Court refused to allow a coal company to seek enforcement of a consent decree to which it was not a party, but it appears that the coal company was not an intended beneficiary of the consent decree.
42
In sum, we conclude, as did the court in Hook, that the Blue Chip Stamps language regarding enforcement of consent decrees is best read as prohibiting, at most, suits to enforce consent decrees by incidental third party beneficiaries, or, perhaps, by third party beneficiaries of a consent decree obtained by the Government. Blue Chip Stamps is not relevant here, and appellants are permitted to bring this action.
3. The Merits
43
Having determined that the Fagerland Consent Decree created a trust for the benefit of eligible Pan Am pilots, including appellants, and that appellants may sue to enforce the duties that ALPA, as trustee, owed to them, we have little difficulty in further concluding, on the merits, that ALPA breached its fiduciary duty in this case. The Consent Decree imposed on ALPA the duty of undivided loyalty as trustee to the pilots, including appellants, who were the beneficiaries of the trust. It is fundamental that "[t]he trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary." RESTATEMENT (SECOND) OF TRUSTS, supra, § 170 (emphasis added). In accordance with this duty, "[t]here should be no right to set off a debt due from the beneficiary to the trustee individually and not as trustee." 12 GEORGE G. BOGERT & GEORGE T. BOGERT, THE LAW OF TRUSTS AND TRUSTEES § 814 (2d rev. ed. 1981); accord, e.g., Alvord v. Ryan, 212 F. 83, 87 (8th Cir.1914). The Pan Am MEC resolution, and subsequent actions taken by ALPA pursuant to that resolution, constitute a textbook violation of this rule: "all [Pan Am] pilots who are delinquent in dues, service charge or assessment payments to ALPA ... shall receive their full [SAP] payment minus all the money owed to ALPA in the form of back dues, service charges and/or assessments." Plaintiffs' Statement of Material Facts to Which There is No Genuine Issue at 7. Accordingly, we hold that ALPA breached its fiduciary duty to appellants when it retained SAP funds as a setoff against strike assessments and other agency shop fees allegedly owed to ALPA by appellants. ALPA is therefore ordered, pursuant to the terms of the trust, to distribute the disputed $161,647.26, with interest and costs, to appellants.
III. CONCLUSION
44
For the foregoing reasons, we hold that under the Fagerland Consent Decree, ALPA held the disputed settlement funds in trust for the benefit of appellants, that appellants may sue to enforce the fiduciary duty owed to them by ALPA, and that ALPA wrongfully diverted the disputed funds in breach of its fiduciary duty when it retained them as a setoff against strike assessments and other agency shop fees owed to ALPA by appellants. Moreover, we hold that the District Court properly had jurisdiction over this claim. Accordingly, we reverse the judgment of the District Court.
45
So Ordered.
46
ORDER*
47
July 23, 1993.
PER CURIAM:
48
Upon consideration of appellees' petition for rehearing and of the response thereto, it is
49
Ordered, by the Court, that the petition is denied as to the merits of the appeal. It is
50
Further Ordered, by the Court, that the case is remanded so that the district court may decide in the first instance (1) whether appellee raised a viable counterclaim and, if so, how that issue should be resolved, and (2) the amount of interest due appellants.
1
The Pan Am Master Executive Council ("MEC") is a subordinate body of ALPA
2
Appellants have abandoned their ERISA claims on appeal
3
The District Court had jurisdiction over the original Fagerland suit pursuant to 28 U.S.C. § 1331 (1988), because it presented federal questions arising under ERISA and the Labor-Management Reporting and Disclosure Act of 1959 (codified as amended in scattered sections of 29 U.S.C.). See Lasky v. Continental Prods. Corp., 804 F.2d 250, 254 (3d Cir.1986) ("The power of a court to enter a consent decree emanates from its authority to adjudicate the rights of the parties in the first instance. The authority thereafter to [enforce] the consent decree similarly derives directly from the court's initial exercise of jurisdiction over the dispute.")
4
Some courts have emphasized that Rule 71 requires the court order to be made expressly in favor of the party who seeks to enforce the order. See, e.g., United States v. American Soc'y of Composers, Authors and Publishers, 341 F.2d 1003, 1008 (2d Cir.), cert. denied, 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119 (1965). That requirement is fulfilled here because the Fagerland Consent Decree provided for distribution of Pan Am SAP funds to "eligible [Pan Am] pilots," a term which includes appellants. Consent Decree at 9, 11
*
Circuit Judge Ruth B. Ginsburg did not participate in this order
|
Case: 13-10234 Document: 00512462536 Page: 1 Date Filed: 12/05/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10234
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 5, 2013
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JONATHAN RODRIGUEZ-RUIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-54-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Jonathan Rodriguez-Ruiz appeals the 151-month within-guidelines
sentence imposed following his guilty plea to possession with intent to
distribute a controlled substance. Rodriguez-Ruiz challenges the substantive
reasonableness of his sentence, arguing that the district court “should have
granted a downward departure or variance from the Guidelines because of the
cumulative factors presented to the court.”
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-10234 Document: 00512462536 Page: 2 Date Filed: 12/05/2013
No. 13-10234
To the extent that Rodriguez-Ruiz challenges the district court’s denial
of a downward departure, “[t]his court lacks jurisdiction to review a downward-
departure denial unless . . . the district court held a mistaken belief that the
Guidelines do not give it the authority to depart.” United States v. Sam, 467
F.3d 857, 861 (5th Cir. 2006) (emphasis omitted). Contrary to Rodriguez-Ruiz’s
suggestion that it is unclear from the record whether the district court believed
it lacked the authority to depart, the record reflects that the court considered
sentencing him below the applicable guidelines range yet determined that a
below-guidelines sentence was not warranted. Accordingly, this court lacks
jurisdiction to review the district court’s denial of a downward departure. See
Sam, 467 F.3d at 861.
Rodriguez-Ruiz has not rebutted the presumption of reasonableness that
attaches to his within-guidelines sentence. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009). Thus, he has not demonstrated that the district court abused its
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2
|
[J-25A-2019 and J-25B-2019] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: ESTATE OF SOPHIA M. : No. 40 WAP 2018
KRASINSKI, A/K/A SOPHIA KRASINSKI :
A/K/A SOFIA KRASINSKY, LATE OF : Appeal from the Order of the Superior
MORRISDALE, (COOPER TOWNSHIP) : Court entered May 15, 2018 at No.
CLEARFIELD COUNTY, PENNSYLVANIA : 1289 WDA 2015, affirming in part,
DECEASED ON 11/04/2006 : reversing in part and vacating in part
: the Order of the Court of Common
: Pleas of Clearfield County entered
APPEAL OF: PATRICIA KRASINSKI- : July 16, 2015 at No. 1707-0003, and
DUNZIK : remanding.
:
: ARGUED: April 9, 2019
IN RE: ESTATE OF SOPHIA M. : No. 41 WAP 2018
KRASINSKI A/K/A SOPHIA KRASINSKI :
A/K/A SOPHIA KRASINSKY LATE OF : Appeal from the Order of the Superior
MORRISDALE (COOPER TOWNSHIP), : Court entered May 15, 2018 at No.
CLEARFIELD COUNTY, PENNSYLVANIA : 1265 WDA 2015, affirming in part,
DECEASED NOVEMBER 4, 2006 : reversing in part and vacating in part
: the Order of the Court of Common
: Pleas of Clearfield County entered
APPEAL OF: PATRICIA KRASINSKI- : July 16, 2015 at No. 1707-0003, and
DUNZIK : remanding.
:
: ARGUED: April 9, 2019
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: OCTOBER 31, 2019
I concur in the result. I write separately to acknowledge what is, in my view, an
ongoing procedural dilemma posed by the majority’s decision to disapprove In re Estate
of Stricker, 977 A.2d 1115 (Pa. 2009), In re Estate of Ash, 73 A.3d 1287 (Pa. Super.
2013), and Estate of Cherry, 111 A.3d 1204 (Pa. Super. 2015). See Majority Opinion, slip
op. at 20 & n.11.
In Stricker, Ash, and Cherry, as the majority aptly describes, the orders
unsuccessfully sought to be appealed each involved the authorization (or lack thereof) of
a future sale of property by an estate. In Stricker and Ash, the orphans’ court compelled
the estate to proceed with the sale of property to specifically identified buyers; in Cherry,
the court refused to authorize any future sale. See Stricker, 977 A.2d at 1117; Ash, 73
A.3d at 1289; Cherry, 111 A.3d at 1206. Notwithstanding the post-Stricker amendments
to Pa.R.A.P. 342, Cherry additionally relied on over 100 years of jurisprudence to deduce
that such prospective orders regarding future sales, which do not resolve a dispute over
who has a property interest, do not actually “determin[e] an interest in real or personal
property” as anticipated by Rule 342(a)(6), and are thus not immediately appealable
unless certified by the orphans’ court. See Cherry, 111 A.3d at 1208, citing T.C.R. Realty,
Inc. v. Cox, 372 A.2d 721, 724 (Pa. 1977) (fundamental law that only final orders may be
appealed “unless otherwise expressly permitted by statute”); In re Maslowski’s Estate,
104 A. 675, 675 (Pa. 1918) (appeal from order directing estate administrator to sell real
estate belonging to decedent is interlocutory and must be quashed); In re Estate of
Habazin, 679 A.2d 1293, 1295 (Pa. Super. 1996) (citing Maslowski’s Estate); Appeal of
Snodgrass, 96 Pa. 420, 421 (Pa. 1880) (order directing sale of real estate for payment of
decedent’s debts is not definitive and thus not appealable).
Here, in contrast, appellant Dunzik seeks to appeal an order which relates to a
sale of property which has already occurred, and incorporates the proposed deeds
containing the particular details of each parcel and its new owner. I thoroughly agree with
the majority that this April 30, 2013 order determined an interest in property and was
immediately appealable pursuant to Rule 342(a)(6), therefore Dunzik’s failure to appeal
it within thirty days waived her challenges to the sale. However, by overruling Stricker,
Ash, and Cherry, and further invalidating predecessor cases regarding the unappealable
[J-25A-2019 and J-25B-2019] [MO: Donohue, J.] - 2
quality of orders authorizing future sales of property by an estate, the majority’s reasoning
would also appear to extend to the orphans’ court order dated March 22, 2011, which
granted the Executor’s petition to permit a private sale of the property. Consequently,
Dunzik would have waived all of her claims to the property by not raising them in an
appeal of that order, and her attempts to challenge the property sale could, plausibly,
have been quashed on such a basis despite the existence of any intervening facts (e.g.,
alleged misrepresentation by the Executor regarding the logistics of the sale) which might
have impacted the success of her challenge at a later time.
Thus, in my view, the majority’s analysis does not clearly explicate at what point
an order regarding an estate’s sale of property determines an interest in property, and
leaves open to question whether an orphans’ court’s general directive authorizing an
estate to sell property at some point in the future — for example, the March 2011 orphans’
court order in this case — does definitively determine an interest in the property such that
any subsequent claims to the property are waived if not appealed within thirty days. I
anticipate this point of uncertainty will serve to undermine the “orderly administration of
estates” envisioned by the rules committee in drafting the Rule 342 amendments.
Pa.R.A.P. 342, Note.
Accordingly, while I do not endorse the majority’s decision to disapprove, rather
than to distinguish, Stricker, Ash, and Cherry, I nevertheless agree with the majority’s
application of Rule 342(a)(6) to the specific facts of this case, as well as its conclusion
the April 30, 2013 order, which placed the orphans’ court’s seal of approval on a sale of
property that had already taken place, determined an interest in property and any claims
against it were therefore waived as not raised within the applicable time period.
Justice Baer joins this concurring opinion.
[J-25A-2019 and J-25B-2019] [MO: Donohue, J.] - 3
|
NOTE: This order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
C. ROBERT SUESS, LEO SHERRY, RICHARD A.
GREEN, IRVING ROBERTS, ON BEHAL'F OF ALL
OTHER SHAREHOLDERS OF BENJAMIN
FRANKLIN FEDERAL SAVINGS AND LOAN
ASSOCIATION, PETER BAKER, BENJAMIN
FRANKLIN FEDERAL SAVINGS AND LOAN
ASSOCIATION, AND DONALD MCINTYRE,
Plaintiffs~Appellants,
AND ~
FEDERAL DEPOSIT INSURANCE CORPORATION,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant»Appellee.
2011-51()1
Appeal from the United StateS C0urt of Federal
Claims in 90-CV-981, Seni0r Judge L0ren A. Smith.
ON MOTION
ORDER
|
318 B.R. 66 (2004)
In re G-I HOLDINGS, INC., Debtor.
Official Committee of Asbestos Claimants, Appellant,
v.
Bank of New York, Appellee.
Bankruptcy No. 01-30135(RG), No. Civ. 03-4275(WGB).
United States Bankruptcy Court, D. New Jersey.
January 29, 2004.
*67 *68 Kenneth A. Rosen, Jeffrey D. Prol, Lowenstein Sandler P.C., Roseland, NJ, for Appellant.
William S. Katchen, Duane Morris LLP, Newark, NJ, for Appellee.
BASSLER, District Judge.
The Official Committee of Asbestos Claimants ("the Committee") appeals the June 18, 2003 decision of the Honorable Rosemary Gambardella, U.S.C.B.J. In that decision, the Bankruptcy Court held that it lacked subject matter jurisdiction to modify, in the way that the Committee had requested, a preliminary injunction that the Bankruptcy Court had previously issued. The Committee seeks to have this Court reverse the Bankruptcy Court's determination and remand the matter for a resolution on the merits of its motion to modify.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and § 158(a). The Court has carefully reviewed and considered all the parties' briefs, the Bankruptcy Court's June 18 Opinion, and any other pertinent items that were included in the record on appeal. The Court also heard oral argument on January 29, 2004. For the following reasons, the Court affirms the Bankruptcy Court's June 18, 2003 decision.
I. BACKGROUND
A. The Parties
On January 5, 2001 ("Petition Date"), G-I Holdings, Inc. ("G-I" or "the Debtor"), which is a holding company, filed a voluntary petition under Chapter 11 of Title 11, United States Code ("Bankruptcy Code"). G-I is currently operating its business as a debtor in possession pursuant to §§ 1107(a) and 1108 of the Bankruptcy Code. G-I is successor to GAF Corporation ("GAF"), an entity named in approximately 500,000 asbestos actions prior to merging into G-I. The Committee asserts that as successor to GAF, G-I remains liable for approximately 150,000 asbestos suits filed and unresolved as of the Petition Date and for unknown numbers of asbestos claims that will be filed in the future.
Building Materials of America, Inc. ("BMCA") is an indirect non-bankrupt subsidiary of G-I, and is also the primary operating subsidiary and principal asset of G-I. Created in 1994, BMCA received all the assets of GAF's roofing products business and expressly assumed $204 million of asbestos liability with G-I indemnifying BMCA against any additional asbestos liability. Notwithstanding that BMCA claims to have never manufactured any asbestos containing products, since September of 2000, it has been named as an additional defendant in more than 1,000 asbestos bodily injury lawsuits against GAF. These claims are based on theories of successor liability or alter ego.
The Committee is an official committee of creditors appointed on January 22, 2001, by the United States Trustee pursuant to 11 U.S.C. § 1102(a), to represent those individuals who allegedly suffer injuries related to the inhalation of asbestos from products manufactured by G-I's predecessors.
The Legal Representative is a fiduciary appointed by the Bankruptcy Court to represent persons who hold present and future asbestos-related demands against the Debtor. The Legal Representative fully supports this appeal brought by the Committee.
*69 The Bank of New York ("BNY") is a financial institution that headed a consortium of lenders ("BNY Group") under revolving credit agreements designed to provide BMCA with access to funds for working capital for its business. Prior to December 2000, this revolving credit facility consisted of a $110 million unsecured line of credit. In December 2000, BNY, on behalf of the lender group, agreed to enter into a new $100 million credit facility over and above the existing $110 million credit facility with BMCA. Upon entering the new $100 million credit facility, BMCA gave the BNY Group a first priority lien on substantially all of its assets, thus securing the first credit facility as well as the second.
When the December 2000 credit extensions and new facility were entered, BMCA had outstanding $539 million in a number of series of publicly issued notes, for which BNY acted as indenture trustee. The holders of BMCA's publicly-issued notes ("Noteholders") received a second lien on BMCA's assets.
B. Preliminary Injunction
On January 8, 2001, G-I commenced the present adversary proceeding against individuals who sued BMCA on asbestos related personal injury claims. At the outset, G-I sought, pursuant to 11 U.S.C. § 105(a)[1], a preliminary injunction barring the filing or prosecution of present and future asbestos claims against BMCA, pending confirmation of a plan of reorganization for G-I or the issuance of a declaratory judgment as to whether BMCA bears successor liability or alter ego liability for asbestos claims.[2] According to G-I, an injunction was necessary to protect the value of the estate, because BMCA would otherwise itself be forced into bankruptcy. Moreover, contending that all asbestos claims against BMCA are also essentially pending against G-I given its indemnification agreement, G-I argued that the Bankruptcy Court would lose its ability to fashion a uniform and efficient method of resolving asbestos claims if asbestos claimants were allowed to prosecute their claims in various courts throughout the country. BNY appeared and joined G-I's application for a preliminary injunction. The Committee intervened and opposed the requested relief, arguing among other things, that the Bankruptcy Court should not exercise jurisdiction over a non-debtor third party by extending the automatic stay to such third parties where the litigation would otherwise not affect property of the bankruptcy estate.
Following a hearing on June 8, 2001, in a decision read on the record on June 22, *70 201, the Bankruptcy Court held that it had subject matter jurisdiction pursuant to 28 U.S.C. § 1334 and granted the preliminary injunction requested by G-I. After negotiations and additional hearings, a formal Preliminary Injunction Order ("PI Order") was entered by the Bankruptcy Court on February 22, 2002. The PI Order allows BMCA to continue to operate its business in the ordinary course as a non-debtor, but requires BMCA to make certain disclosures, and prohibits it from carrying out certain specified transactions without first giving the Committee thirty days notice. The transactions subject to this notice requirement included refinancing or replacement of BMCA's existing credit facility with BNY, as well as the making of any pre-payments on BMCA's outstanding public notes.
On July 19, 2001, the Bankruptcy Court clarified its intended scope for the PI Order by stating:
It was never the intention of the Court in determining that conditions be drafted on the injunction to not allow BMCA, which is admittedly a non-debtor, notwithstanding the Debtor's success in obtaining a preliminary injunction, it was never the intent of this Court to not allow normal course transactions to proceed. It appears that the types of certain of the conditions that the Committee wished to have imposed, without agreement, go well beyond what this Court envisioned as reasonable conditions. . . . So if there has been some misapprehension to not have normal course transactions proceed in the normal course, I know of no authority that would have me impose conditions that would not allow a non-debtor to do business.
Trans. of July 19, 2001 Hearing, at 64-65.
C. Refinancing
On March 18, 2003, BMCA gave notice to the Committee of its intention to replace the BNY Group's credit facilities, which were scheduled to expire in August 2003, with a new facility ("Citibank Facility") by a group of new lenders led by Citibank ("Citibank Group"). The Citibank Facility offered to establish a secured revolving credit facility with a maximum credit limit of between $350 million and $375 million, which would refinance the existing $210 million credit facility provided by the BNY Group, approximately $35 million in notes, and other financial obligations. At the closing, the BNY Group's loans to BMCA would thus be repaid in full. The Citibank Facility would be secured by liens in virtually all BMCA's assets, replacing the liens granted to the BNY Group.
G-I, BMCA, the Committee, and the Legal Representative did not oppose or seek to prevent the refinancing, but did seek to condition the refinancing on certain specified conditions. Specifically, BMCA, the Committee, and the Legal Representative sought to modify the preliminary injunction to provide that BMCA's entry into the Citibank Facility and usage of the Facility would not prejudice the rights, if any, that the Committee, the Legal Representative, or the bankruptcy estates of G-I or BMCA (if and when BMCA becomes a debtor in bankruptcy) may have against the BNY Group or the Noteholders in, among other things, actions that the Committee might bring in the future against BMCA, including actions seeking to avoid the liens that BMCA had given to secure the BNY Credit Facility.[3]
*71 As stated by the Committee, the rationale for the proposed modification was as follows: BNY and the Noteholders had enjoyed the benefit of the preliminary injunction for two years during which asbestos claimants had been restrained from prosecuting their claims against BMCA. These restraints prevented asbestos claimants from engaging in the "race of diligence" that generally determines priorities among creditors of nonbankrupts, such as BMCA. As G-I acknowledged when it moved the preliminary injunction, without the benefit of that order, BMCA would have soon followed G-I into Chapter 11. Had BMCA filed Chapter 11, its pre-petition debts could not have been repaid except pursuant to a plan of reorganization, and the liens held by the BNY Group and Noteholders would have been subject to immediate attack as preferential transfers. Thus, the opportunity for BNY to receive payment from BMCA, which is one result of the Citibank refinancing, would not have arisen without the preliminary injunction. Accordingly, the Committee asserts that "simple fairness" dictates that the BNY Group and Noteholders should not be permitted to improve their position in relation to asbestos claimants by setting up, on the basis of the new Citibank refinancing, new legal defenses that would not otherwise exist as to the avoidance of their liens.
While not objecting to the proposed refinancing, BNY challenged the Bankruptcy Court's jurisdiction to prejudice or modify the rights and defenses arising from BMCA's payment of the amounts due BNY under the credit agreements. As argued by BNY, the signing of the proposed order would have deprived BNY in advance of its ability to assert payment of the amounts owing to it under the BNY Credit Facility as a defense in any unspecified future action by the Committee, including BNY's right to assert that such payments would moot (because the liens would no longer be in existence or necessary once payment was made) any attempt by the Committee to avoid the liens granted in December 2000 to secure payment of the amounts owing under the BNY Credit Facility.
In response, the Committee argued that the Bankruptcy Court possessed subject matter jurisdiction to modify its own injunction. Moreover, the Committee argued that the Bankruptcy Court should find that BNY was "judicially estopped from raising defenses to the anticipated avoidance power claims." (R. 1 at 24:7-25.) Alternatively, the Committee requested that the Bankruptcy Court determine to be without merit any defenses arising from payment to BNY out of the proceeds of the proposed Citibank Facility that BNY might assert in any hypothetical, future actions. Finally, the Committee asked the Bankruptcy Court to decline approval of the proposed Citibank refinancing *72 if it found that any of BNY's defenses had merit. (Id.)
After hearings on May 14 and May 23, 2003, the Bankruptcy Court held a final hearing on June 11, 2003 and reserved decision. The court later dictated its decision on the record at a hearing held on June 17, 2003. That decision is embodied in an Order filed June 18, 2003.
D. Decision Below by Bankruptcy Court
The June 18, 2003 Order provides in pertinent part that the Committee and Legal Representative shall not object to the entry by BMCA into the Citibank Facility and that entry into the Citibank Facility and any usage thereof to pay BNY shall not prejudice the rights that the Committee, the Legal Representative, the estate of G-I or BMCA may have to pursue, including, among other things, avoidance claims against BNY or the Noteholders. Moreover, the Order provides that such entry into or usage of the Citibank Facility shall not "prejudice any rights or defenses of the [BNY] Group, Noteholders, or [BNY] in its capacity as indenture trustee with respect to any [such] causes of action . . ." (R. 6 at ¶ 3(b)).
In reaching that decision, the Bankruptcy Court held "that it lacked subject matter jurisdiction to modify the conditions to the Preliminary Injunction" to bar BNY or the Noteholders from asserting that the refinancing of BMCA's debt "gives rise to new rights or defenses in favor of the [BNY] Group or the Noteholders that do not otherwise exist under applicable loan documents or existing law." (Id. at 5.) In determining that the court lacked subject matter jurisdiction, Judge Gambardella relied on two separate grounds.
First, the Bankruptcy Court held that the Committee's request for it to adjudicate, at that time, the Committee, Legal Representative, BNY, and Noteholders' future defenses or rights by or between each other was not ripe for judicial review given that the preference and avoidance actions that the Committee might assert would require intervening actions. (R. 1 at 19-25.) Therefore, Judge Gambardella intimated that she could not modify the preliminary injunction as requested by the Committee because doing so would be tantamount to assuming jurisdiction over a "possible or conjectural" controversy or rendering an "advisory opinion." (Id. at 19:20-25.)
Second, the Bankruptcy Court held that there was no subject matter jurisdiction under 28 U.S.C. § 1334(b). Specifically, the Bankruptcy Court rejected the Committee's assertion that the relief it sought "related to" G-I's bankruptcy case within the meaning of that jurisdictional statute.
Notwithstanding the Bankruptcy Court's determination that it had no subject matter jurisdiction, the Bankruptcy Court considered and rejected the Committee's argument on the merits that, based upon allegedly inconsistent statements by counsel in prior proceedings, BNY was "judicially estopped" from claiming that payment to it of the balance due under the BNY Credit Facility would give rise to defenses to future avoidance actions. In reaching that decision, Judge Gambardella concluded that BNY's position had not "substantially changed" from its prior position. (Id. at 19:3-6.)
The Committee now appeals the Bankruptcy Court's June 18, 2003 decision.[4]
*73 II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 158(a), "[t]he district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges." The Third Circuit has taken a pragmatic view of finality in bankruptcy cases. See John Hancock Mut. Life Ins. Co. v. Route 37 Business Park Assocs., 987 F.2d 154, 157 (3d Cir.1993). A decision in a bankruptcy matter is final when "`nothing remains for the [lower] court to do.'" In re West Electronics Inc., 852 F.2d 79, 81 (3d Cir.1988) (quoting Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101 (3d Cir.1981)).
A bankruptcy court's factual findings may be disturbed only if clearly erroneous. See In re Sharon Steel Corp., 871 F.2d 1217, 1221 (3d Cir.1989). A factual finding is clearly erroneous if it is either "completely devoid of minimum evidentiary support displaying some hue of credibility or . . . bears no rational relationship to the supportive evidentiary data," Krasnov v. Dinan, 465 F.2d 1298, 1302-03 (3d Cir.1972), or, even though there is some evidence to support it, if the reviewing court is left with the definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Legal conclusions of the bankruptcy court, however, are subject to plenary review. See J.P. Fyfe, Inc. v. Bradco Supply Corp., 891 F.2d 66, 69 (3d Cir.1989). Where mixed questions of law and fact are presented, the appropriate standard must be applied to each component. In re Sharon Steel Corp., 871 F.2d at 1222.
III. DISCUSSION
On appeal, the Committee continues to contend that the Bankruptcy Court had jurisdiction to modify its own injunction in view of changing circumstances and shifting equities. According to the Committee, the BNY Group and Noteholders should be prevented from deriving the advantage of acquiring new rights or defenses from the refinancing of BMCA's debt while the PI Order restrains the asbestos claimants from prosecuting their claims against BMCA.
Moreover, the Committee also argues that the Bankruptcy Court retained the inherent power to modify the injunction by the terms of the PI Order itself the PI Order provides that before the expiration of BMCA's existing credit agreements, a hearing would be held to determine whether "conditions in addition to those imposed under this Order are necessary for the continuance of the preliminary injunctive relief herein." (R. 4 at 6.)
Finally, the Committee maintains that the Bankruptcy Court possesses subject matter jurisdiction pursuant to 28 U.S.C. § 1334(b), and that this matter is ripe for judicial review.
Thus, as presented by the Committee, the two issues that are to be decided by this Court on appeal are: (1) whether the Bankruptcy Court erred in concluding that it lacked subject matter jurisdiction; and (2) whether the Bankruptcy Court erred in finding that the Committee's request to condition the refinancing on the adjudication of the Committee, Legal Representative, BNY, and Noteholders' future defenses or rights by or between each other was not ripe for judicial review.
*74 A. Subject Matter Jurisdiction
As an initial matter, the Court notes that the Committee has presented the issues on appeal in such a way that subject matter jurisdiction and ripeness appear to be separate and distinct doctrines. Indeed, this is further evidenced by the statements made in the Committee's reply brief. For example, the Committee criticizes the Bankruptcy Court's June 17th decision as having mentioned ripeness in a single paragraph and seemingly regarded ripeness "simply as a different way of expressing its holding as to lack of subject-matter jurisdiction." See Reply Brief in Support of the Committee's Appeal ("Reply Br."), at 14. Additionally, the Committee states that the principal focus of BNY's brief is not subject matter jurisdiction, but rather, the ripeness doctrine. Id. The Committee's understanding of the relationship between subject matter jurisdiction and ripeness is, of course, incorrect.
Ripeness, while it is an independent requirement for judicial review, Burlington N.R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 691 (D.C.Cir.1996), is directly relevant to whether a court has subject matter jurisdiction. See 15 James Wm. Moore, Moore's Federal Practice, § 101.70[1] (3d ed.2002) (citing Southern Pac. Transp. Co. v. Los Angeles, 922 F.2d 498, 502 (9th Cir.1990) (ripeness is determinative of jurisdiction); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (whether claim is ripe bears on subject matter jurisdiction)); Thompson v. Borough of Munhall, 44 Fed.Appx. 582, 583, 2002 WL 1840802, at *1 (3d Cir. Aug.13, 2002) ("There must be a true and ripe case or controversy for a federal court to have jurisdiction over an action"). Thus, Judge Gambardella relied on two separate and alternate grounds in determining that the Bankruptcy Court lacked subject matter jurisdiction: (1) ripeness; and (2) "related to" jurisdiction pursuant to 28 U.S.C. § 1334(b).
1. Ripeness
The Constitution limits the jurisdiction of the federal courts to the resolution of actual "cases" and "controversies." U.S. Const. Art. III, § 2. The "case and controversy" requirement must be satisfied in all actions, including declaratory judgment actions. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Philadelphia Fed'n of Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir.1998). It is this requirement that has engendered the ripeness doctrine, an aspect of justiciability, which determines when an action may be brought. Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411 & n. 12-13 (3d Cir.1992).
"Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so." Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). The party invoking the court's jurisdiction bears the burden of demonstrating that the case is justiciable. Id. Because the federal courts' jurisdiction is constitutionally limited, unless the record affirmatively shows otherwise, or plaintiffs meet their burden to clearly allege facts invoking a federal court's jurisdiction, the presumption is that jurisdiction is lacking. Philadelphia Fed'n of Teachers, 150 F.3d at 322-23.
The ripeness doctrine seeks to prevent the courts "from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). "[R]uling on federal constitutional matters in advance of the necessity of deciding them [is to be avoided], to postpone judicial review *75 where it would be premature." Armstrong, 961 F.2d at 413, 424 (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936)).
Ultimately, the case must involve "`a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" [citations omitted]. "A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered `some threatened or actual injury resulting from the putatively illegal action . . .'" [citations omitted].
Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1463 (3d Cir.1994).
To determine whether a particular matter is ripe, courts "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507. "The various factors that enter into a court's assessment of fitness include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the extent to which a claim is bound up in the facts; and whether the parties to the action are sufficiently adverse." Philadelphia Fed'n of Teachers, 150 F.3d at 323. "Where the plaintiff's action is based on a contingency, it is unlikely that the parties' interests will be sufficiently adverse to give rise to a case or controversy within the meaning of Article III." Armstrong, 961 F.2d at 411-12.
Here, the Committee seeks from the Bankruptcy Court an advance determination that BNY is precluded from asserting payment as a defense to a hypothetical future action in which the Committee seeks to retroactively void BNY's liens. The Committee insists that, contrary to the Bankruptcy Court's ruling, this controversy is ripe for judicial review pursuant to Peachlum v. City of York, Pennsylvania, 333 F.3d 429 (3d Cir.2003). In Peachlum, the Third Circuit articulated the requirements of the ripeness doctrine as follows:
Accordingly, the ripeness doctrine requires that the challenge grow out of a "real, substantial controversy between parties" involving a "dispute definite and concrete." [citation omitted]. The question in each case is whether the facts alleged show that there is a substantial controversy, between parties having adverse legal interests, "of sufficient immediacy and reality" to justify judicial resolution. [citation omitted].
Id. at 434 (emphasis added). In this case, the controversy is not "of sufficient immediacy and reality" because the Committee's asserted "claim" is based on at least four uncertain and contingent events. As BNY argues, before the Committee can even bring an action against BNY seeking to avoid the liens given by BMCA in December 2000, the following uncertain and contingent events would first have to occur: (1) the Committee must prevail in the Successor Liability Action and establish that BMCA is liable for G-I's asbestos liabilities; (2) BMCA must file for bankruptcy relief; then (3) the Committee must succeed in getting the resultant BMCA estate substantively consolidated with the G-I estate; and finally, (4) the Committee must successfully make the substantive consolidation retroactive to the January 5, 2001 Petition Date. As BNY further points out, such speculative future "claim," which does not now exist and may never exist, does not even belong to G-I or its creditors because it relates to liens granted by BMCA rather than G-I. The Committee *76 does not dispute or otherwise address the fact that these contingent events would need to occur before it could file an avoidance claim against BNY, or that such events may not ever occur. Accordingly, while a court does generally have the power to modify its own preliminary injunction, the relief sought by the Committee presents a controversy too remote for judicial review.
Indeed, the Committee even concedes that "the merits of [BNY's] new legal defenses would not be tested until some future time, and might never be determined." Reply Br., at 15. In other words, the Committee recognizes that it is "not necessary for the Bankruptcy Court to pass upon the validity of the defenses that [BNY] might assert in the future to avoidance claims brought by representatives of G-I's bankruptcy estate." Id. at 16.
Rather, in an apparent effort to make the present controversy have sufficient "immediacy and reality," the Committee makes clear for the first time in its reply papers that the present dispute involves "the inequity of [BNY's] acquisition of [such defenses] as a result of the refinancing in the first place." Reply Br., at 16 (emphasis added). However, the Court finds that this contrived attempt to distinguish between seeking a ruling on the acquisition, as opposed to the validity, of the new legal defenses is unavailing. The Committee cannot credibly claim that BNY's mere acquisition, rather than the prospect of BNY's future use of such new legal defenses, is what it so strenuously seeks to prevent. Moreover, to the extent that the Committee argues that equitable principles should foreclose BNY from acquiring any new legal defenses, the Court cannot ignore that it would arguably be at least equally inequitable to strip BNY of such defenses without considering the validity of those defenses.
Additionally, the present dispute, even as newly characterized by the Committee as involving only BNY's mere acquisition of a new defense, is not ripe for judicial review under the very language of Peachlum on which the Committee relies:
The following considerations underpin the ripeness doctrine: are the parties in a sufficiently adversarial posture to be able to present their positions vigorously; are the facts of the case sufficiently developed to provide the court with enough information on which to decide the matter conclusively; and is a party genuinely aggrieved so as to avoid expenditure of judicial resources on matters which have caused harm to no one. [citation omitted].
Peachlum, 333 F.3d at 433-34. The Committee maintains that its claims are ripe under Peachlum because the answer to all three of these questions is "yes." Contrary to the Committee's assertions, however, the answer to at least the last of these three questions is "no." The Committee is not "genuinely aggrieved so as to avoid expenditure of judicial resources on matters which have caused harm to no one." BNY's acquisition or possession of a new legal defense does not presently harm the Committee; rather, any potential harm to the Committee can only occur if and when BNY actually asserts such a defense in a suit by the Committee. Additionally, as discussed supra, whether BNY will ever have the opportunity to assert its new legal defense against the Committee is neither imminent nor certain to occur. Thus, the Committee cannot be "genuinely aggrieved" by a matter which has not yet caused it any harm.
For similar reasons, the Bankruptcy Court was correct in determining that the Committee's request essentially seeks an advisory opinion. To support its contention that the Bankruptcy Court *77 erred, the Committee simplistically argues that its request does not "seek advice", but rather, "present and concrete modifications to an existing Preliminary Injunction," and that "[j]udicial action is not `advisory' merely because it is taken to prevent adverse future consequences that may or may not occur." Mem. Of Law in Support of Committee's Appeal, at 35-36. While it is true that injunctive relief can reach future conduct, the Committee has cited no case that stands for the proposition that a court, by preliminary injunction or otherwise, can ignore the justiciability requirement and make a final adjudication of claims that do not exist at the time of the injunction and may never exist at all.
2. 28 U.S.C. § 1334(b)
A bankruptcy court's jurisdiction extends to four types of controversies: (1) "cases under title 11", see 28 U.S.C. § 1334(a); (2) civil proceedings "arising under title 11"; (3) civil proceedings "arising in a case under title 11"; and (4) civil proceedings "related to a case under title 11", see 28 U.S.C. § 1334(b). In addition to finding that the Committee's request was not ripe for judicial review, the Bankruptcy Court also held that it lacked subject matter jurisdiction under 28 U.S.C. § 1334(b) because the Committee's request was not "related to" G-I's bankruptcy case.
On appeal, the Committee argues that not only does the Bankruptcy Court have "related to" jurisdiction pursuant to 28 U.S.C. § 1334(b), but that the Bankruptcy Court failed to consider whether it possessed subject matter jurisdiction under the "civil proceeding arising under title 11" or "arising in a case under title 11" provisions of 28 U.S.C. § 1334(b).
In response, BNY contends that the Bankruptcy Court lacked jurisdiction under each of the three grounds recognized in 28 U.S.C. § 1334(b). BNY also points out that the Committee raised before the Bankruptcy Court only the "related to" provisions of 28 U.S.C. § 1334(b), not the arguments it now asserts for the first time based upon the other provisions of 28 U.S.C. § 1334(b).
Because ripeness is an independent requirement for judicial review, and in view of this Court's ruling that this controversy is not ripe, even if the Court were to determine that subject matter exists pursuant to 28 U.S.C. § 1334(b), this controversy would still not be justiciable. Therefore, the Court need not reach the question of whether subject matter exists pursuant to any or all of the provisions of 28 U.S.C. § 1334(b).
Similarly, while the PI Order may contemplate the Bankruptcy Court's power to modify the injunction, the modification sought by the Committee, as discussed supra, involves a controversy too remote to satisfy the ripeness doctrine.
B. Estoppel
The Committee advanced its estoppel argument as part of its position on the merits i.e., that the balance of the equities favored modifying the preliminary injunction to prevent BNY from deriving an unjust, unilateral advantage from the refinancing. Reply Br., at 18-19. Thus, in light of the Bankruptcy Court's decision that it lacked subject matter jurisdiction to decide this controversy, the Bankruptcy Court's discussion of estoppel can only be dictum. Accordingly, the Court need not rule on the estoppel issue.
IV. CONCLUSION
For the reasons noted above, the Court affirms the Bankruptcy Court's June 18, 2003 decision that due to lack of ripeness, *78 it did not have subject matter jurisdiction to prejudice the rights and defenses BNY might assert in any subsequent proceedings, including actions in which the Committee or Legal Representative seek to avoid the liens granted by BMCA to secure the BNY Credit Facility.
This matter having come before the Court on the appeal of the Official Committee of Asbestos Claimants, of the United States Bankruptcy Court decision by Rosemary Gambardella, U.S.C.B.J., entered on June 18, 2003, which refused to modify a preliminary injunction for lack of subject matter jurisdiction; and
The Court having considered the submissions of the parties; and
The Court having heard oral argument on January 29, 2004; and
For the reasons set forth in the Court's Opinion filed this day; and
For good cause shown;
It is this 29th day of January, 2004, hereby ORDERED that the decision of the Bankruptcy Court is affirmed; and
The Clerk of the Court is ordered to close this appeal.
NOTES
[1] The "All Writs" section of the Bankruptcy Code provides that a bankruptcy court "may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title." 11 U.S.C. § 105(a).
[2] In February 2001, the Debtor and BMCA commenced an adversary proceeding in the Bankruptcy Court for a judgment declaring that BMCA was not liable as successor or alter ego for G-I's asbestos liabilities ("Successor Liability Action"). The Committee intervened as a defendant and counterclaimed for a judgment declaring that BMCA was liable under theories of successor liability and piercing the corporate veil. This Court withdrew the reference of the Successor Liability Action to the Bankruptcy Court; thus, that action is now pending before this Court.
Also in February 2001, the Committee commenced an adversary proceeding seeking to substantively consolidate the estate of G-I with BMCA on an interim basis in order to bring the BMCA liens within the 90 day preference period as measured from the Debtor's Petition Date. By Order dated April 6, 2001, the Bankruptcy Court denied the Committee's request. The substantive consolidation adversary proceeding has since been inactive pending the outcome of the Successor Liability Action.
[3] BMCA, the Committee, and the Legal Representative submitted for the Bankruptcy Court's approval a proposed order that provided in pertinent part:
BMCA's entry into the proposed Citibank Financing Facility and any usage of that facility shall not . . .
b. give rise to any rights or defenses in favor of the [BNY] Group that do not otherwise exist under the Credit Agreements or applicable law with respect to any cause of action or remedy that has been or may be asserted by the Committee, the Legal Representative or the estates of G-I or BMCA (including without limitation those actions and remedies referred to in clauses (I) through (iv) of paragraph 5 below).
(R. 5 at 5, ¶ 3.) The "actions and remedies" referred to are set forth in paragraph 5 of the Order and include "(iv) any future proceeding in which the Committee or the Legal Representative shall assert any cause of action or seek any remedy against the [BNY] Group or the Noteholders arising out of BMCA's granting of any liens, or payment of any monies, to the [BNY] Group or the Noteholders." (R. 5 at 7.)
[4] The refinancing with the Citibank Group closed in July 2003. However, by a separate Order dated June 18, 2003, the Bankruptcy Court granted the Committee affirmative interim relief pursuant to Rule 8005, Fed. R. Bankr.P., to preserve the status quo on the relative rights of the parties pending appeal to this Court of the Bankruptcy Court's order denying the Committee's application for modification of the PI Order.
|
51 F.3d 1046
U.S.v.Parcel of Real Property*
NO. 94-60825
United States Court of Appeals,Fifth Circuit.
Mar 31, 1995
Appeal From: N.D.Miss., No. 1:92-CV-344
1
DISMISSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
|
345 F.Supp. 133 (1972)
Leon J. WHITE
v.
Warren M. BLOOMBERG, Postmaster, United States Post Office Department to be known as The United States Postal Service, et al.
Civ. No. 71-200-K.
United States District Court, D. Maryland.
June 23, 1972.
*134 *135 Peter S. Smith, and Charles A. Rees, Baltimore, Md., for plaintiff.
George Beall, U. S. Atty., and Jean G. Rogers, Asst. U. S. Atty., Baltimore, Md., for defendants.
FRANK A. KAUFMAN, District Judge.
This case presents the issue of whether a permanent postal employee, with a record of uninterrupted service from 1953 until his dismissal on October 30, 1970, can be discharged for failure to pay a single debt owed to the Post Office Credit Union of Maryland, Inc. (Credit Union), a nongovernmental body and thus a private creditor.[1] The plaintiff, Leon J. White, seeks herein a declaration that his discharge was unlawful, reinstatement to his former position, and an award of back pay from the date of his discharge.
The individual defendants are the Postmaster for the City of Baltimore, the Regional Director for the Washington Regional Office of the United States Postal Service, and the members of the United States Civil Service Commission. The United States Postal Service is also a named defendant.[2] The parties have filed cross-motions for summary judgment. The material facts, with certain exceptions noted in this opinion, are not disputed and can be summarized as follows:
On February 27, 1964, the plaintiff entered into a loan agreement with the Credit Union calling for the latter to loan to plaintiff $1420 to be used by him to purchase a secondhand car. A check for that amount, dated February 27, 1964, made payable jointly to plaintiff and to a Baltimore automobile dealer, was issued by the Credit Union to plaintiff. The next day, plaintiff signed a contract with the car dealer for the purchase of an automobile for $1820.08. On March 2, 1964, plaintiff endorsed the Credit Union check, gave it to the dealer, and agreed to pay the $390.08 balance of the purchase price from his own funds.
White testified during his hearing in Philadelphia in February, 1971 before the Regional Appeals Examiner of the United States Civil Service Commission that during the week before February 27, 1964, he had placed a $10.00 deposit on a car with the auto dealer "until [he] could make other financial arrangements" (Tr. 45) and that on February 27, 1964 he received his loan check from the Credit Union (Tr. 43-45).[2a] The check was made payable to White and the auto dealer and was endorsed by both of them. White stated during the February, 1971 hearing that after he decided to buy the car, Johns Hopkins Hospital sent him a notice that his two sons should be brought to the hospital for tests because it was thought they *136 had sickle cell anemia (Tr. 47-48);[2b] that when he received that notice he "knew [that he] couldn't go through with the car loan" (Tr. 48) and at the same time have the money to pay the possible medical expenses of his sons; that within a few days after he delivered the Credit Union check to the car dealer, he called both the Credit Union and the auto dealer (Tr. 48-49) and informed them he wanted the deal and the check cancelled (Tr. 48-50); that the next week (Tr. 50) someone from the auto dealer called him and asked if he wanted to borrow some money to make up the difference and that he replied in the negative (Tr. 51); that he never drove or rode in or received delivery of the car or even saw it from the day he first observed it and put down the $10.00 deposit (Tr. 51-52); and that he assumed the deal was cancelled (Tr. 52).
On March 31, 1964, the Credit Union wrote to White stating legal action would be taken. On May 12, 1964, the Credit Union obtained a confessed judgment against plaintiff in the Superior Court of Baltimore City in the amount of $1742.50, i. e., the balance of the loan, plus court costs and an attorney's fee of $284. On or about October 9, 1964, the automobile was sold at a sheriff's sale for $1075, some $745 less than the purchase price plaintiff had agreed to pay.[3] After the costs of that sale were deducted, the net proceeds were turned over to the Credit Union's counsel who in turn forwarded $390.08 to the car dealer and the remainder to his client, the Credit Union. Thus, there was and remains outstanding in connection with the transaction a judgment balance of $965.08, plus interest, court costs, and attorney's fees.
The Post Office Department records show, and plaintiff concedes, that during the several years after the 1964 judgment was obtained plaintiff received notices from officials of the Post Office Department advising him that he owed a debt to the Credit Union and that he was expected to pay it. On June 27, 1968, in response to continuing complaints to Post Office officials by the Credit Union, plaintiff was interviewed by a Post Office Department official concerning his indebtedness. During that interview, plaintiff signed an acknowledgment of the debt and agreed to pay $50.00 every other pay period until the debt was liquidated.[4] When plaintiff failed to honor that commitment, the Post Office Department issued to plaintiff a letter of warning on September 24, 1968, and when that letter brought no response, the Department suspended plaintiff from work for one day on June 24, 1969 for failure to pay the debt.
On April 21, 1970, plaintiff received a letter from defendant Bloomberg, the Baltimore Postmaster, stating that disciplinary action including removal from the Department was being contemplated because of plaintiff's failure to pay the $965.08 plus interest, court costs and attorney's fees to the Credit Union.[4a] That letter also indicated that plaintiff's past record, including the one-day suspension on June 24, 1969, would be considered in determining what action might be appropriate. Plaintiff was given an opportunity to respond, which he did by letter of April 30, 1970.
*137 On July 24, 1970, defendant Bloomberg informed plaintiff that he would be removed from the Post Office Department on August 14, 1970 for failure to pay his debt. Plaintiff appealed that decision within the time allowed, and on September 11, 1970, an "Adverse Action Appeal" hearing was held before a Hearing Officer Investigator at which plaintiff appeared without counsel. On the basis of the Hearing Officer's report and findings of fact, defendant Ulsaker, the Regional Director for the Washington Regional Office of the United States Post Office Department, affirmed on October 13, 1970 the decision to remove plaintiff from the Post Office Department.
On October 30, 1970, plaintiff was removed from his employment by the Post Office Department. White has filed an affidavit in this proceeding stating that he has had no full-time employment since that date.
Plaintiff next appealed to the Philadelphia Region of the United States Civil Service Commission. After a hearing on February 18 and 19, 1971 before the Regional Appeals Examiner, at which plaintiff was represented by his present counsel, the Regional Director sustained, on March 29, 1971, plaintiff's discharge, concluding that the "agency's decision to effect removal, rather than some lesser disciplinary action, was not unreasonable, arbitrary or capricious and that the action was effected for such cause as would promote the efficiency of the service within the meaning of that language in the law and regulations." No subsidiary facts or reasons were given to underpin that conclusory approach.[5] Plaintiff appealed to the Board of Appeals and Review of the United States Civil Service Commission. On August 5, 1971, that Board sustained the decision of the Post Office Department to remove plaintiff for failure to pay the debt owed to the Credit Union, stating: "On the merits the Board finds that the reason for removal is sustained and considered with the cited past record removal was not an arbitrary, capricious or unwarranted action but instead was for such cause as will promote the efficiency of the service." No further administrative review is available to plaintiff. Accordingly, he has now exhausted all administrative remedies.[6]
Plaintiff's discharge occurred after seventeen years of service with the Post Office. At no time has there ever been any suggestion by anyone that plaintiff did not perform his duties satisfactorily or that any activity or lack of activity by plaintiff, either within or without the scope of his employment by the Post Office, other than in connection with his failure to pay the one debt in issue in this case, was offensive in any way to anybody. Rather, the record establishes that plaintiff was discharged only and solely for failure to pay the single debt to the Credit Union. There is also no evidence in the record to sustain any inference that plaintiff's failure to pay his debt to the Credit Union was considered differently by the Post Office Department or any administrative hearing official because of any concern the Post Office Department had with regard to the financial soundness of the Credit Union. *138 To the contrary, the record reveals that defendants have taken the position that plaintiff's failure to pay the Credit Union has been treated on all executive and administrative levels no differently than plaintiff's failure to pay any other creditor would have been treated.
During the proceeding in this Court after completion of the administrative hearings, counsel for the defendants filed a number of letters contained in the files of the Post Office. Inter alia, those letters reveal that on May 4, 1964, about one week before the entry of judgment, the auto dealer's attorney wrote to the Baltimore Postmaster stating, inter alia:
Our client is willing to try to work out an agreeable settlement of this matter, but it is imperative that it have the cooperation of Mr. White, since the title to the automobile has been transferred to him according to the records of the Department of Motor Vehicles. I would, therefore, certainly appreciate any efforts your Department could make with respect to having Mr. White contact the undersigned, so that this matter can be cleared up with a minimum of expense and effort.
That attorney again wrote to that official as follows on July 10, 1964, apparently two months after the confessed judgment had been entered:
On May 4, 1964, I wrote you requesting your help in having Mr. White contact the undersigned with reference to the purchase of an automobile from our client . . . . I received notification from your office that said communication had been received and that it would receive prompt attention. Unfortunately, I have not heard anything further.
Since [our client] and the Post Office Employees Credit Union, Inc. (which advanced Mr. White $1,420.00, as partial payment for said automobile) wish to work this matter out in the most agreeable manner possible with the buyer, I must again request that Mr. White contact me, immediately.
I certainly appreciate any efforts your Department has made and will make in this matter.
And on October 30, 1964 the Credit Union's attorney addressed this letter to that same official:
Please be advised that this office represents the Baltimore Post Office Employees Credit Union, Inc. which under date of May 12, 1964 claimed a Judgment by Confession in the Superior Court of Baltimore City against the above captioned in the amount of $1,441.30.
The facts leading up to this Judgment are basically that Mr. White purchased an automobile from [the car dealer] and made a $50.00 deposit on the same. He then made application to the Credit Union to borrow $1,420.00, apparently being the balance due on the automobile. The Credit Union advanced this money by way of check payable to both Mr. White and [the car dealer]. No delivery of the car was made at that time, as unknown to the Credit Union, the sum of $390.03 was still due to [the car dealer], for which sum they retained the car on a basis of a Vendor's Lien.
The automobile had already been titled in the name of Mr. White. Mr. White refused to pay the balance due and apparently thought he could simply wash his hands of the entire matter. This office made an arrangement with [the car dealer] whereby they would return the $1,420.00 provided Mr. White reassign the automobile to them and paid the cost of the transfer. Mr. White refused to do anything. Thereafter, on May 15, 1964, Mr. White agreed to make periodic payments on this Judgment but to *139 date we have not received any of the promised payments.
There being no other alternative, the automobile was sold at a Sheriff's Sale and I enclose herewith a copy of the advertisement for said sale. After deducting the prior Vendor's Lien, as well as the costs and expenses of the sale, there still remains $965.08 due the Credit Union.
I do not feel that this action by Mr. White, and the attended publicity as indicated by the enclosed is in the best interest of the postal service, particularly the continued refusal of Mr. White to make any arrangements to repay the money which he borrowed from the Credit Union.
I believe that Part 744 435 of the Postal Regulations prohibits this type of action by a postal employee and permits disciplinary action if the same remains unremedied.
I would accordingly appreciate any help which you could give us in this matter, particularly as the salaries and other benefits due governmental employees are protected from attachments.
White's attorney in this case has informed this Court that he had examined the October 30, 1964 letter before the February 18-19, 1971 hearing. In the course of that hearing, White testified without objection that he never was informed that the title to the car was placed in his name until he was so informed by his present attorney a few days prior to the February 18-19, 1971 hearing; that he never knew of the auction before it took place; and that no one representing or speaking on behalf of the auto dealer or the Credit Union ever informed him of the possibility of putting the car title back in the name of the auto dealer if White paid the cost of transfer (Tr. 54-55). Over objection by counsel for the Post Office Department, White testified that if he had been so informed and been given the opportunity of paying $50-$100 of costs he would have done so (Tr. 55-56).
The aforementioned October 30, 1964 letter from the Credit Union's attorney and the prior May 4, 1964 and July 10, 1964 letters from the auto dealer's attorney were not introduced into evidence during the February 18-19, 1971 hearing. Nor was there any testimony from either of those attorneys or from anyone who allegedly acted for or on behalf of the auto dealer or the Credit Union prior to the confession of judgment on May 12, 1964.
Counsel for both sides agree that White had no power to subpoena any witness such as attorneys for or officials of the auto dealer or the Credit Union to testify at the February 18-19, 1971 hearing. Counsel for White has represented to this Court that he specifically elicited White's testimony with regard to any retransfer offer to establish the lack of such an offer. The possibility of a remand by this Court for a further administrative hearing so as to enable the taking of further evidence in that connection has been considered. In view of the lengthy period which has already been occupied by the administrative and judicial processes in this case, such a remand is not, in this Court's opinion, appropriate. It would appear clear from the March 31, 1964 letter of the Credit Union and the May 12, 1964 confessed judgment, taken eight days after the May 4, 1964 letter, that the auto dealer and the Credit Union moved quickly. Moreover, White's testimony on February 18-19, 1971 is uncontradicted and was not impeached or even challenged during that hearing. Further, the postal authorities from the start have seemingly considered White's case on the basis that such testimony *140 was immaterial and that all that was material was White's failure to pay the single judgment debt.
Plaintiff asserts the existence of federal jurisdiction under each of 28 U.S.C. § 1331,[7] 28 U.S.C. § 1343(4),[8] 28 U.S.C. § 1339,[9] 39 U.S.C. § 409(a),[10] and 5 U.S.C. § 702, the latter embodying the judicial review provisions of the Administrative Procedure Act.[11] However, it *141 is not necessary in this case to consider independently the existence of jurisdiction, vel non, under each one of those statutes because jurisdiction is present under the basic grant of power to the federal courts set forth in 28 U.S.C. § 1331 to hear and determine controversies arising under the Constitution or laws of the United States when the amount in controversy exceeds $10,000. Plaintiff alleges herein violations of rights protected by the Fifth and Ninth Amendments to the Constitution and also by one or more federal statutes and regulations. At the time he was dismissed from the Post Office Department on October 30, 1970, plaintiff's annual salary was $9938.00. Thus, viewing this case solely as a suit to enjoin defendants from refusing to reinstate plaintiff to his former position, the value of the rights White seeks to protect, that is, his right to federal employment, exceeds $10,000. See Glenwood Light and Water Co. v. Mutual Light & Power Co., 239 U.S. 121, 126, 36 S.Ct. 30, 60 L.Ed. 174 (1915). See generally C. Wright, Law of the Federal Courts § 34 (2d ed. 1970); 1 J. Moore, Federal Practice ¶ 0.96 (2d ed. 1964). Probable future earnings and retirement and other benefits may be considered in determining whether the $10,000 jurisdictional amount requirement of section 1331(a) is satisfied. Friedman v. International Association of Machinists, 220 F.2d 808 (D.C.Cir.), cert. denied, 350 U.S. 824, 76 S.Ct. 51, 100 L.Ed. 736 (1955); Nord v. Griffin, 86 F.2d 481 (7th Cir. 1936), cert. denied, 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879 (1937).
Defendants, however, contend that although this suit is nominally brought against individual federal officials and the Postal Service, it is in fact a suit against the United States and thus is barred by the doctrine of sovereign immunity. In Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L. Ed.2d 15 (1963), Mr. Justice Clark wrote:
The general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration." Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed.2d 1209 (1947), or if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act." Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at 704, 69 S.Ct. 1457, 93 L.Ed. 1628 . . . .
Mr. Justice Clark further noted that the general rule is limited by two well-established exceptions, namely, "(1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void." 372 U.S. at 621-622, 83 S.Ct. at 1007. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).
By alleging that the individual defendants herein acted in excess of their authority under the applicable federal statutes and regulations governing the discharge of government employees, and by alleging that, insofar as those statutes and regulations permit plaintiff to have been discharged under the circumstances of this case, those statutes and regulations have been unconstitutionally applied to him, plaintiff has brought his case within both of the exceptions referred to in Dugan v. Rank, supra. See Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C. 122, 448 F.2d 1045 (1971), at 13-14. Nor does the injunctive relief requested in this case in any way present the danger of "substantial bothersome interference with *142 the operation of government" which it is the underlying purpose of the doctrine of sovereign immunity to prevent. Littell v. Morton, 445 F.2d 1207, 1214 (4th Cir. 1971). Plaintiff's reinstatement to his position as a Postal Service employee, if he is entitled to such relief, would require only a ministerial act of the appropriate Postal Service officials. Accordingly, this Court concludes that sovereign immunity is not a bar to plaintiff's suit for declaratory and injunctive relief.[12]
Whether this Court has the power to award plaintiff back pay is a matter which is less easily resolved. In cases in which the remedy sought is a judgment for back pay which can be satisfied only out of the public treasury of the United States, the United States itself is an indispensable party and when, as in the present case, the plaintiff has failed to join the United States as a party defendant, the claim must be dismissed if it is asserted against the Government as such. Zapata v. Smith, 437 F.2d 1024, 1027 (5th Cir.1971). Moreover, it is to be noted that 28 U.S.C. § 1346(a) (2) confers jurisdiction upon a federal district court only when the claim is less than $10,000.[13] Plaintiff's claim for back pay in this suit exceeds $10,000 and accordingly cannot be asserted in this Court, but rather only in the Court of Claims, pursuant to 28 U. S.C. § 1491, if it is a claim against the Government as such.[14]See 7B J. Moore, Federal Practice ¶ 1346 at 527 (2d ed. 1971).
However, the United States Postal Service, not the former Post Office Department, is one of the named defendants in this case. As such, it is an establishment existing independently of the executive branch of the United States[15] with the power "to sue and be sued in its official name."[16] Further, the sovereign immunity of the United States has not been bestowed upon it. A suit against it, i.e., the Postal Service, for back pay is not a claim against the United States within the meaning of 28 U.S.C. § 1346(a) (2). See Reconstruction Finance Corp. v. Langham, 107 F. Supp. 482, 484 (M.D.Tenn.1952), aff'd, 208 F.2d 556, 559 (6th Cir.1953). Cf. Williams v. United States, 139 F.Supp. 951, 952 (Ct. of Claims 1956). Moreover, the United States Attorney, as counsel for the Postal Service[17] as well as for all of the other defendants in this case, has informed this Court, by copy of a letter from the Law Department of the United States Postal Service, that the Postal Service has assumed liability for the back pay of all persons found to have been wrongfully discharged by its predecessor, the United States Post Office *143 Department, after July 1, 1970. Plaintiff was discharged on October 30, 1970. Thus, the Postal Service has assumed liability, if any exists, for whatever back pay may be owed to plaintiff by the Post Office Department. Further, it is not disputed that if plaintiff was wrongfully discharged by the Post Office Department, he is entitled to an award of back pay from that Department under the Back Pay Act, 5 U.S.C. § 5596.[18] Accordingly, this Court concludes that it has jurisdiction to award back pay in this case as well as to grant the equitable relief sought by plaintiff.
The number of bases of jurisdiction asserted by plaintiff is surpassed only by plaintiff's listing and discussion of alternative bases for relief. Plaintiff contends that his discharge for failure to pay his debt to the Credit Union violates the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment, his right of privacy as guaranteed by the Fifth and Ninth Amendments, the provisions of 5 U.S.C. § 7501(a) and 5 U.S. C. § 1674 and of several Post Office Department regulations. Because this Court agrees that plaintiff's discharge violated 5 U.S.C. § 7501(a) and the applicable Post Office Department regulation dealing with employees who fail to meet their financial obligations, it is not necessary to decide the constitutional and other statutory and regulatory issues presented by plaintiff.
The Postal regulation, 39 C.F. R. § 742.735-29(d), which was the basis for plaintiff's discharge, provides, in pertinent part:
(d) Indebtedness. (1) an employee shall pay each just financial obligation in a proper and timely manner, especially one imposed by law such as Federal, State, or local taxes. For the purpose of this section, a "just financial obligation" means one acknowledged by the employee or reduced to final judgment by a court, and "in a proper and timely manner" means in a manner which the Department determines does not, under the circumstances, reflect adversely on the Government as his employer. In the event of dispute between an employee and an alleged creditor, this section does not require the Department to determine the validity or amount of the disputed debt or to institute disciplinary proceedings.
* * * * * *
(7) Failure to pay just financial obligations will be regarded as cause for *144 disciplinary action. . . .[19] [Emphasis added.]
The Post Office Department's discretion in applying that regulation was strictly limited by 5 U.S.C. § 7501(a) which requires that "an individual in the competitive service may be removed . . . only for such cause as will promote the efficiency of the service." That discretion was also subject to 39 C.F.R. § 742.735-29(d) (6), which stated that the Post Office Department is not "expected to act as a collection agent"; and to Postal Manual, Part 745.111, which provided that the "goal in taking disciplinary action is to retain in the postal service employees who are already experienced in the work and in whom the Post Office Department already has an investment." Without ignoring the safeguards against arbitrary dismissal from public employment which are embodied in that statute and in those regulations, an employer agency cannot justify a discharge merely by reciting in conclusory fashion the language of the statute. Instead, the agency "must demonstrate some `rational basis' for its conclusion that a discharge `will promote the efficiency of the service.'" Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1164 (1969).
In Norton v. Macy, the Court held that a budget analyst in the National Aeronautics and Space Administration, who concededly had engaged in homosexual activity, had been unlawfully discharged because the record before the Court "[did] not suggest any reasonable connection between the evidence against [the employee] and the efficiency of the service . . . ." 417 F.2d at 1162. In reaching that conclusion, Judge Bazelon specifically acknowledged that in a number of cases courts have upheld an agency's discharge of an employee for financial irresponsibility. However, he noted that in each of those cases there existed rational bases for the agency's conclusion that the financial irresponsibility of the employee had seriously impaired the agency's ability to perform its duties. He also wrote (at 1168):
Appellee relies on the cases which have sustained dismissals on account of financial irresponsibility.29 Some of
29. Jenkins v. Macy, 357 F.2d 62 (8 Cir. 1966); McEachern v. Macy, 341 F.2d 895 (4 Cir. 1965); Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364 (1949); cert. denied, 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1949).
these cases have, indeed, cited the risk of "embarrassment" or "discredit" to the employing agency; but the risk to which they refer involves a special kind of embarrassment. The wages of governmental employees, unlike those of other employees, are not subject to garnishment. Creditors, thus deprived of an important security and collection device, may frequently importune a federal employer to pressure delinquent employees into paying their debts. Such importunings in themselves necessarily have some effect on the efficiency of the service. Moreover, it is likely that commercial establishments would refuse to extend credit to many otherwise eligible federal employees without some assurance of employer support for their collection efforts. That eventuality, should it occur, would have an obvious impact on the attractiveness of federal employ and, in turn, on the quality of the government's work product. In short, the anticipated discredit to the agency from an employee's financial delinquency is discredit with a specific sector of the public which may have an ascertainable effect on the agency's ability to perform its duties. The concern at least relates to some more concrete injury to the service than a general tarnishing of an agency's antiseptic public image. Furthermore, it is especially significant that the Civil Service Commission apparently does not invariably discharge known financial delinquents: agencies are expected *145 to consider the employee's good faith and to make efforts to persuade him to pay his debts as soon as possible; only inveterate and unrepentant deadbeats are to be disciplined by dismissal. [Emphasis added; certain footnotes omitted.]
An examination of the cases cited in Norton v. Macy bears out Judge Bazelon's analysis of agency actions taken pursuant to 5 U.S.C. § 7501(a). In Jenkins v. Macy, 357 F.2d 62 (8th Cir. 1966), the General Services Administration had received forty separate complaints, concerning the failure of a custodial laborer to pay his just financial obligations, from eleven different creditors over a period of three years. In McEachern v. Macy, 233 F.Supp. 516 (W.D.S.C.1964), aff'd, 341 F.2d 895 (4th Cir.1965), the employee was charged with eight instances of financial delinquency. But see Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364 (1949), cert. denied, 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1949), in which the Court held there could be no judicial review of whether a discharge of a clerk-typist for failure to pay two outstanding judgment debts, concerning which his employer, the Department of the Army, received sixteen complaints, constituted such "`cause as will promote the efficiency of the service.'" 175 F.2d at 365. That view was at the very least inferentially questioned in Norton v. Macy, supra. However, it must also be noted that in Carter, the Court stated: "If the decision of the Civil Service Commission were open to review, we find ample evidence in the record to support the conclusion reached. Its decision was in no manner arbitrary, capricious or unreasonable." 175 F.2d at 366.
The most recent decision of the Board of Appeals and Review of the United States Civil Service Commission supports the conclusion that discharges for financial irresponsibility are considered by that administrative agency to be required for the good of the service, only under special circumstances. In that case, In the Matter of George H. Pierce, decided on September 14, 1971,[20] the Board ordered reinstatement of a Post Office Department employee who had been discharged under 39 C.F.R. § 742.735-29(d) for failure to pay a single debt. The facts and the administrative decision in Pierce warrant detailed comparison with the facts and the administrative decision in the within case.
Pierce owed a single debt of $305.62 arising from the purchase of a T.V. set which stopped working 40 days after its purchase by Pierce and which could not be repaired. Plaintiff herein owes a single debt of $965.08 for a car of which he never took possession. Pierce's debt had been outstanding for almost five years, plaintiff's for over six. In both cases, the Post Office Department had received numerous letters of complaint from the respective creditors. Both Pierce and plaintiff apparently promised to make efforts to liquidate their respective debts, and both failed to honor those commitments. Pierce had received a letter of reprimand prior to his suspension while plaintiff had received both a reprimand and a one-day suspension.
In the within case, the Board of Appeals and Review sustained the Post Office Department's removal of plaintiff on the grounds that there was sufficient evidence of financial irresponsibility and that the discharge was for the good of the service. On the other hand, in Pierce, the Board concluded:
The Board agrees that the agency mis-applied its regulations. The word "obligations" is indeed used in the plural, indicating the intent of the regulation is that it be used against "dead-beat" employees who utilize the fact that a Federal employee's wages may not be garnisheed as a shield against paying their creditors. The record does not show that Mr. Pierce is such an employee. Quite the contrary. The record gives but one instance *146 wherein he has erred, and that relates to non-payment of a single obligation. The Board finds that it is unreasonable to remove Mr. Pierce under the circumstances shown herein. The Board further finds that his removal would not promote the efficiency of the service. [Emphasis added.]
At the request of plaintiff and pursuant to the course advocated by Mr. Justice Harlan in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970),[21] this Court requested that the Commissioners of the United States Civil Service Commission, who are among the defendants herein, submit a statement of the Commission's views with respect to 39 C.F.R. § 742.735-29(d) (1) and (7), both in general and in the light of the decisions of the Board of Appeals and Review in the cases of plaintiff and Pierce. In a letter to this Court dated December 1, 1971, the Commission, through its General Counsel, responded to that request. In essence, the General Counsel attempted to reconcile the different results in White and Pierce on the ground that in White the facts justified the conclusion that the discharge was "for the efficiency of the service" while in Pierce that finding was not supported by the record. However, the Commission's answer does not disclose, nor has this Court, after repeated scrutiny of the two decisions of the Board of Appeals and Review, been able to discern, what material facts were determinative in White which were not also present in Pierce.[22]
When the same administrative body treats similar cases in dissimilar ways, it engages in arbitrary action, directly contrary to the rule of law. Recently, the Court of Appeals of the District *147 of Columbia has had occasion to consider conflicting decisions by the Federal Communications Commission. In so doing, Judge Wright wrote:
Faced with two facially conflicting decisions, the Commission was duty bound to justify their coexistence. The Commission's utter failure to come to grips with this problem constitutes an inexcusable departure from the essential requirement of reasoned decision making. The rule of law is intended to eliminate the appearance as well as the reality of arbitrariness, and if the public's faith in its administrative agencies is to be maintained, it is imperative that these agencies act in a wholly rational, logical fashion, completely free from even the appearance of bias, prejudice and improper influence. * * *
Put to the test under pressure it waffled. * * * Under the circumstances, its arbitrary action may not stand. [Footnote omitted.]
Columbia Broadcasting System, Inc. v. Federal Communications Commission, 454 F.2d 1018 (D.C.Cir. 1971), at 18-19. See Burinskas v. N.L.R.B., 123 U.S. App.D.C. 143, 357 F.2d 822, 827 (1966). Cf. Melody Music, Inc. v. Federal Communications Commission, 120 U.S.App. D.C. 241, 345 F.2d 730, 732-33 (1965). While courts will not disturb an administrative interpretation or application of a regulation unless the same is clearly erroneous, Jno. McCall Coal Co. v. United States, 374 F.2d 689, 691-92 (4th Cir. 1967), the situation is different when an administrative interpretation is not in accord with the meaning and purpose of the regulation and/or if the administrative agency's applications of its own regulation are irreconcilably in conflict.
Plaintiff's discharge for failure to pay the single debt owed to the Credit Union fails to conform to the requirements of the statute and regulation in two respects. First, the Pierce case makes it clear, as does the dictum in Norton v. Macy, supra at 1168, that the intent of regulations such as the Postal Service regulation applicable herein, is to enable removal of inveterate deadbeats. Employees who owe only a single debt are usually not considered to be inveterate deadbeats. Having interpreted and applied, as it did in Pierce, its own applicable agency regulation, the Commission may not, as of this date, be permitted to enforce against plaintiff a different interpretation and a different application of that same regulation. See generally Heffner v. United States, 420 F.2d 809 (4th Cir. 1970); United States ex rel. Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969); Francis v. Davidson, 340 F.Supp. 351 (D.Md.1972), at 365-366.
Secondly, assuming that the Commission is correct in its statement in its letter addressed to this Court that (despite the rather strong language to the contrary in Pierce) "it is not material whether the failure is singular or plural but how it effects [sic] the Government service . . . (See Norton v. Macy, 417 F.2d 1161, 1168 (D.C.Cir. 1969)),"[23] the Commission has not pointed to any evidence in the record in this case which suggests "any reasonable connection between the evidence against [plaintiff] and the efficiency of the service." Norton v. Macy, supra at 1162. In McEachern v. Macy, 233 F.Supp. supra at 521, the Court held that the Commission drew "a justifiable inference" of harm to the government agency through continued employment of "a person in a responsible position who was neglectful of his personal financial obligations." Affirming per curiam, the Fourth Circuit noted (at 341 F.2d supra at 896) "ample support [in the record] for the Commission's finding and conclusion." The eight defaults of McEachern, a Social Security Administration hearing examiner, apparently not claimed by him to be other than just debts, are to be contrasted with the single failure of the plaintiff-mail carrier and the circumstances *148 under which the single debt in this case arosea debt which has been in existence since 1964.[23a] Plaintiff disputes the bona fides of that debt, a position of which the Post Office Department official who was most responsible in initiating disciplinary action against plaintiff stated he was unaware until after he had caused such action to be commenced. In fact, that official testified during the February, 1971 hearing that he might have taken another course of action if he had been aware of such dispute before the first disciplinary steps were taken (Tr. 113).[24]
The fact that other federal agencies may not discharge their employees for failure to pay one debt is also noted. Thus, in McGuire v. United States, 145 Ct.Cl. 17 (1959), the Court of Claims granted back pay to an Internal Revenue Service employee on the ground that Treasury Department regulations providing for discipline because of habitual refusal to pay debts did not permit removal for failure to pay one debt. And under 45 C.F.R. § 73.735-701, HEW can discipline an employee for improper handling of his own financial affairs if complaints of his creditors cause HEW to devote a considerable amount of official time, or the employee's financial problems impair his job efficiency, or the attitude of the general public toward HEW is adversely affected. Here, none of those factors were seemingly present. Perhaps, to some degree, the last-mentioned factor can be inferred, but no more here than in Pierce.
One of the most interesting contentions stated by plaintiff relates to the prohibition in the Consumer Credit Protection Act, 15 U.S.C. § 1674, that
(a) No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness. [Emphasis added.]
Defendants' position is that that section does not apply to a government agency such as the Post Office Department. And it was that Department which discharged White on October 30, 1970, not the Postal Service which was not yet then in existence. It may well be that the Consumer Credit Protection Act does not apply to a federal governmental agency such as the Post Office Department was. Herein it is not necessary for this Court to reach that question or to make any determination with regard to the applicability, per se, of the Consumer Credit Protection Act.[25] But it would seem that the general spirit of the congressional prohibition in Section 1674, enacted in 1968 and effective July 1, 1970, against discharge of an employee because of garnishment for a single indebtedness, at the very least should have suggested in 1970 to the Post Office Department and in 1971 to the Civil Service Commission that in the absence of any compelling factual difference, they should not have approved the discharge of one postal employee owing a single debt, i.e., White, and proscribed the discharge of another postal employee, also owing only a single debt, i.e., Pierce.
Plaintiff's motion for summary relief is hereby granted; defendants' motion for summary judgment is hereby denied. *149 The defendant Postal Service shall without delay reinstate plaintiff and pay to him back pay from the date of his discharge, namely, October 30, 1970, to the date of his reinstatement. It is so ordered.
NOTES
[1] The Credit Union is incorporated in Maryland pursuant to Md.Ann. Code art. 11, § 135 et seq. All of its officers and all of the members of its Board of Directors are, at the present time, and, at all times material herein, have been, employees or former employees of the Postal Service or the United States Post Office Department. The Credit Union presently occupies, rent free, space in the Post Office Building.
[2] The United States Postal Service, "an independent establishment of the executive branch of the Government of the United States," 39 U.S.C. § 201, became in July, 1971 the successor to the United States Post Office Department and the Office of Postmaster General of the United States Post Office Department, pursuant to the Postal Reorganization Act, Pub.L. 91-375, 84 Stat. 719. Section 8 of that Act provides that ". . . employees of the Post Office Department shall become . . . employees of the United States Postal Service on [July 1, 1971]."
[2a] The record of the February, 1971 hearing reveals that White signed a confessed judgment note on February 27, 1964.
[2b] In an affidavit filed in this Court, White states he was first so informed after he endorsed the check.
[3] The reason for such a sizeable difference is not disclosed or in any way indicated in the record.
[4] White testified during the February, 1971 hearing that he signed a paper agreeing to liquidate the judgment debt at the rate of $50 bi-monthly because he "was threatened with my job if I didn't make some sort of arrangements" (Tr. 60).
[4a] Postal Manual, Part 745.12 provides:
"Neither charges nor reference to past record may go back further than two years from the issuance date of the letter" of proposed adverse action, such as the April 21, 1970 letter White received from Bloomberg. Thus, were it not for the paper White signed on June 27, 1968, the adverse action letter of April 21, 1970 would have been barred by the limitations provision of Part 745.12 of the Postal Manual.
[5] Prior to March 29, 1971, namely on February 24, 1971, plaintiff, through his present counsel, instituted this case in this Court, seeking, inter alia, immediate equitable relief so as to require the Post Office Department to reinstate him. This Court, on February 25, 1971 and on March 2, 1971, denied such relief on the grounds that on those dates the Regional Director had not then rendered his decision and that in addition plaintiff had available to him further administrative review.
[6] Because plaintiff had no right to compel attendance of witnesses or production of evidence at any stage of the administrative proceedings concerning his dealings with the auto dealer and/or the Credit Union, plaintiff was unable to present evidence concerning plaintiff's allegations stated to this Court that he was dealt with unfairly by one or both of them and that there was a failure to eliminate or at the very least mitigate damages.
[7] § 1331. Federal question; amount in controversy . . .
(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.
* * * * *
[8] § 1343. Civil rights and elective franchise
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * * *
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.
The amount of $10,000 in controversy is not required under this section. C. Wright, Law of the Federal Courts § 32 at 108 (2d ed. 1970). Defendants contend that § 1343(4), like § 1343(3), only applies to suits seeking to redress the deprivation of personal rights and liberties and not the deprivation of property rights, including discharges from public employment. See Hague v. C.I.O., 307 U.S. 496, 531, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (Stone, J., concurring). However, the Supreme Court has recently, expressly rejected the personal right-property right distinction in a case brought under § 1343(3). Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).
[9] § 1339. Postal matters
The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service.
The Sixth Circuit has indicated that there is no amount in controversy prerequisite for actions brought under this section. See Griffith v. W. S. Wick Grocery Co., 272 F. 246, 249 (6th Cir. 1921). Although no cases involving the discharge of postal employees have been brought under § 1339, the language of that statute would appear to provide a jurisdictional basis in a case in which the employee alleges, as plaintiff does herein, that his discharge was in violation of a statute governing and protecting the rights of postal employees. See United States v. Branch 60 National Association of Letter Carriers, 312 F.Supp. 619, 621 (D.Conn.1970) (Timbers, J.).
[10] § 409. Suits by and against the Postal Service
(a) Except as provided in section 3628 [decisions of the Postal Rate Commission] of this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service. Any action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court under the provisions of chapter 89 of title 28.
No suits involving wrongful discharge of postal employees have been brought under this section.
[11] § 702. Right of review
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
This Court, as did the Supreme Court in Tooahnippah v. Hickel, 397 U.S. 598, 90 S.Ct. 1316, 25 L.Ed.2d 600 (1970), expresses no opinion on the question of whether the judicial review sections of the Administrative Procedure Act independently confer jurisdiction. In Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), the Supreme Court apparently assumed it had jurisdiction under § 702 to review agency actions. Commenting on Rusk v. Cort, supra, Professor Davis has written:
The Supreme Court has quite properly assumed that one who is entitled to review under the Administrative Procedure Act cannot be denied review on the ground that a district court lacks jurisdiction to provide it. [K. Davis, Administrative Law Treatise 789 (1970 Supp.).]
The Fourth Circuit has held that the Administrative Procedure Act confers jurisdiction to review a federal agency's discharge of an employee. McEachern v. United States, 321 F.2d 31 (4th Cir. 1963). See Halsey v. Nitze, 390 F.2d 142 (4th Cir.), cert. denied, 392 U.S. 939 (1968); Mindel v. United States Civil Service Commission, 312 F.Supp. 485, 486-487 (N.D.Calif.1970). Upon such review the applicable standards are the twin tests of substantial evidence, and lack of arbitrary and capricious agency action constituting an abuse of discretion or being otherwise not in accordance with law. Halsey v. Nitze, supra; McEachern v. United States, supra.
[12] With respect to the defendant United States Postal Service, 39 U.S.C. § 401 would appear to waive sovereign immunity. That section provides:
The Postal Service shall have the following general powers:
(1) to sue and be sued in its official name; * * *.
[13] That section provides:
(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
* * * * *
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
[14] That section provides, in relevant part:
The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
It is also to be noted that while the Court of Claims has the power to award actual, presently due money damages, it has no power to grant declaratory or other equitable relief. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).
[15] 39 U.S.C. § 201.
[16] 39 U.S.C. § 401(1). See n. 12 supra.
[17] 39 U.S.C. § 409(d).
[18] 5596. Back pay due to unjustified personnel action
(a) For the purpose of this section, "agency" means
(1) an Executive agency;
(2) the Administrative Office of the United States Courts;
(3) the Library of Congress;
(4) the Government Printing Office; and
(5) the government of the District of Columbia.
(b) An employee of an agency who, on the basis of an administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee
(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period; and
(2) for all purposes, is deemed to have performed service for the agency during that period, except that the employee may not be credited, under this section, leave in an amount that would cause the amount of leave to his credit to exceed the maximum amount of the leave authorized for the employee by law or regulation.
* * * * *
The Back Pay Act was applicable to the Post Office Department until June 30, 1971 when the operation of the Post Office Department was taken over by the Postal Service. See n. 2 supra.
[19] In addition, see, inter alia, 29 C.F.R. §§ 742.735-23(b) and 29(d) (2). Those regulations were issued under the authority of 5 U.S.C. § 301 and 39 U.S.C. § 501.
[20] Five weeks after the Board's decision involving plaintiff. See p. 7, supra.
[21] In that case, which involved the interpretation of regulations promulgated by the Department of Health, Education and Welfare, Mr. Justice Harlan wrote:
Whenever possible the district courts should obtain the views of HEW in those cases where it has not set forth its views, either in a regulation or published opinion, or in cases where there is real doubt as to how the Department's standards apply to the particular state regulation or program.
397 U.S. supra at 407, 90 S.Ct. at 1215 (footnote omitted).
[22] The letter of the Commission's General Counsel contains these passages:
Whether a particular employee's failure [to pay his debts] requires an imposition of discipline is for the employee's superiors to determine on the basis of the facts at hand. * * *
The [White] decision further found that Mr. White's removal would promote the efficiency of the service under the facts present. * * *
The Board's statement relative to the plural use of the word "obligations" is correct in the general context in which it was used, to emphasize that the regulatory intent is to proscribe "dead-beat" debt delinquency. It is incorrect to lift that statement from the case and use it out of context in an effort to limit the substantive coverage of the regulation under totally different facts.
It is unquestionable that an employee under certain circumstances can create as much, or more, of an adverse effect on the "efficiency of the service" with one failure to pay a just debt as another with more than one such failure. In such a personnel matter it is not material whether the failure is singular or plural but how it effects [sic] the Government service. (See Norton v. Macy, 417 F.2d 1161, 1168 (D.C.Cir. 1969))
The Board's statement in Pierce "that the agency misapplied its regulations" must not be taken out of context. The controlling regulatory language is that "An employee shall pay each just financial obligation . . .". While we recognize the ambiguity of the Board's statement when quoted out of context, when the Board's decision is read in its entirety no question exists as to its ultimate correctness. The facts that led to Mr. Pierce's restoration did not depend on the singularity of his debt but rather on other facts set forth in that decision.
In the judgment of the Civil Service Commission, the regulations of the Postal Service do not prohibit that agency from effecting a disciplinary action on the basis of a single failure to pay a just debt when the circumstances of that failure establish a valid statutory cause for the action, i. e., one that promotes the efficiency of the service.
[23] See n. 22 supra.
[23a] See n. 4 and n. 4a, supra.
[24] That same official testified in the February, 1971 hearing (Tr. 102) that he handled approximately 1100 debt complaints per year, that no postal employees in Baltimore were discharged in 1970 for failure to pay debts, and only one such removal occurred in 1969.
See also 39 C.F.R. § 742.735-29(d) (1) with regard to the relevance of the existence of the dispute and its effect upon the exercise of discretion by those in the Post Office in commencing disciplinary action for failure to pay a debt.
[25] See 15 U.S.C. § 1612. But see Knox Hill Tenant Council v. Washington, 448 F.2d 1045 (D.C.Cir. February 4, 1971), in which the Court discusses the applicability of the District of Columbia Housing Code to public housing owned by an agency of the United States Government. See also Ruhl v. Railroad Retirement Board, 342 F.2d 662 (7th Cir. 1965).
|
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YOLANDA VIZCARRA CALDERON
Plaintiff,
v.
Case No. 18-cv-764 (CRC)
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
RANFIEL CASTANEDA SANCHEZ,
Plaintiff,
v.
Case No. 18-cv-765 (CRC)
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Yolanda Vizcarra Calderon and Ranifel Castaneda Sanchez want to know why
they have been denied visas to enter the United States since 2013. So they have filed Freedom of
Information Act requests with various federal agencies that may have information regarding the
denials. Two years ago, this Court rejected Plaintiffs’ challenge to the Drug Enforcement
Agency’s response to one such request. See Vizcarra Calderon v. DOJ, 297 F. Supp. 3d 65
(D.D.C. 2018); Castaneda Sanchez v. DOJ, 297 F. Supp. 3d 188 (D.D.C. 2018). In this suit,
Plaintiffs lodged various objections to the responses of the U.S. Citizenship and Immigration
Service (“USCIS”), Immigration and Customs Enforcement (“ICE”), and the Department of
State (“State”) to FOIA requests directed to those agencies.
The parties have resolved all the claims regarding Plaintiffs’ requests to USCIS and ICE,
and Plaintiffs no longer challenge the adequacy of State’s searches for responsive records. See
Defs.’ Mot. for Summ. J. 1 n.1. All that remains are Plaintiffs’ challenges to State’s use of
several FOIA exemptions to withhold 130 documents in full and 11 documents in part. 1 See
Pls.’ Opp. 10 (challenging only State’s use of FOIA Exemptions 3, 5, 7(A), and 7(E)). Because
the Court finds that State properly applied Exemption 3 to each withheld document, it will enter
summary judgment for the Government and dismiss the case. 2
Summary judgment may be granted when the moving party establishes that there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In FOIA cases, summary judgment is the appropriate mechanism for determining
whether an agency has discharged its obligations under the statute. See, e.g., Judicial Watch,
Inc. v. CFPB, 60 F. Supp. 3d 1, 6 (D.D.C. 2014). The Court may rely on declarations or
affidavits provided by agency personnel that are “relatively detailed and non-conclusory” when
ruling on summary judgment. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (citation omitted). Such affidavits are “accorded a presumption of good faith.” Id.
State asserts FOIA Exemption 3 to justify all of its withholdings. Defs.’ Mot. for Summ.
J. 8. Exemption 3 permits an agency to withhold information specifically exempted from
disclosure by statute, “if that statute requires that the matters be withheld from the public in such
1
State withheld sixty documents in full and five documents in part from Ms. Vizcarra
Calderon and seventy documents in full and six documents in part from Mr. Castaneda Sanchez.
2
Because State properly asserted Exemption 3 for all of its withholdings, the Court need
not discuss the parties’ arguments related to the other exemptions challenged by Plaintiffs.
2
a manner as to leave no discretion on the issue; or establishes particular criteria for withholding
or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Here, State relies
upon section 222(f) of the Immigration and Nationality Act (“INA”), which states:
The records of the Department of State and of diplomatic and consular offices of
the United States pertaining to the issuance or refusal of visas or permits to enter
the United States shall be considered confidential and shall be used only for the
formulation, amendment, administration, or enforcement of the immigration,
nationality, and other laws of the United States, except [in two narrow
circumstances].
8 U.S.C. § 1202(f). The D.C. Circuit long ago held that section 222(f) qualifies as a
nondisclosure statute under Exemption 3. Medina-Hincapie v. Dep’t of State, 700 F.2d 737,
740–43 (D.C. Cir. 1983). Thus, if State satisfies the Court that the records it withheld “pertain[]
to the issuance or refusal of visas or permits to enter the United States,” the Court must enter
summary judgment for the agency. Section 222(f) of the INA encompasses more than just the
information found on a visa application; it also includes any “information revealing the thought-
processes of those who rule on the application.” Id. at 744.
State represents in two Vaughn indices that all but one of the documents it withheld
contain “information used in the course of processing” or “adjudicating” Plaintiffs’ visa
applications. Weetman Decl. Exh. 1 (“Vizcarra Calderon Vaughn Index”); Id. Exh. 2
(“Castaneda Sanchez Vaughn Index”). It therefore argues that the withheld documents fall
directly within the scope of the information deemed to be confidential by the INA and thus are
exempt from disclosure. Plaintiffs resist this conclusion on two grounds.
First, Plaintiffs argue that State’s descriptions of the documents are inadequate to permit
the Court to conduct a de novo review of whether they fall within the bounds of section 222(f).
State’s Vaughn indices provide ample description of each document, and the Court is satisfied
that State has meet its burden to show that each of the withheld documents, save one, were in
3
fact a part of the thought processes that led to the denial of Plaintiffs’ visa applications. See, e.g.
Vizcarra Calderon Vaughn Index 1 (“[D]ocuments [1–4] are printouts from the Bureau of
Consular Affairs’ Consular Consolidated Database (“CCD”) entitled ‘Independent Lookout
Accountability.’ . . . The documents provide the status of background checks conducted in the
course of processing visa applications for Ms. Vizcarra Calderon.”) (emphasis added); id. at 4
(“[D]ocuments [11–21] provide the details of the results of namechecks conducted in the course
of adjudicating visa applications for Ms. Vizcarra Calderon.”) (emphasis added); Castaneda
Sanchez Vaughn Index 16 (“[D]ocument [61] is a printout from the CCD that provides the
details of the result of a case assessment relating to a visa application by Mr. Castaneda
Sanchez.”) (emphasis added); id. at 18 (“[D]ocument [67] is a printout from the CCD of
applicant details for Mr. Castaneda Sanchez. The document contains details concerning the
adjudication of visa applications for Mr. Castaneda Sanchez, including consular comments,
application data, and other pertinent data.”).
Second, Plaintiffs contend that State has not met its burden to show that the requested
records are exempt under the INA because the records purportedly reflect Plaintiffs’ visa status
as “quasi-refusal” 3—a designation that Plaintiffs argue is “not related to the adjudication of an
3
Plaintiffs believe they have been designated “quasi-refusals” based on documentation
received from their ICE FOIA requests. See Pls.’ Statement of Material Facts in Genuine
Dispute ¶ 2. State refuses to confirm or deny whether Plaintiffs have in fact been tagged as
quasi-refusals, but it has explained to the Court that quasi-refusal is a classification akin to a red
flag. That is, a “quasi-refusal typically serves as a notation in the Consular Lookout and Support
System (CLASS) that an alien may be inadmissible to the United States and therefore should not
be issued a visa or other immigration benefit.” Weetman Decl. ¶ 29. “If the alien later applies
for a visa, or some other immigration benefit, the quasi-refusal will be a factor in determining the
alien’s eligibility.” Weetman Decl. ¶ 29. A quasi-refusal may also be used as “a step toward
effectuating the revocation of a visa.” Weetman Decl. ¶ 29.
4
actual issued or refused visa” as required to satisfy the INA exemption. Pls.’ Opp. 14. Plaintiffs
maintain that only the thought processes of those who ruled on actual visa applications may be
exempted under the INA, as opposed to information (like quasi-refusals) that may be used to rule
on a future application. But the Court need not decide whether a document revealing that State
has placed a quasi-refusal designation in a FOIA requester’s file is always exempt under section
222(f). Here, State has satisfied its burden to show that all of the records at issue—save one—
were used in processing or adjudicating actual visa applications, regardless of whether the
records contain a quasi-refusal designation. Both Ms. Vizcarra Calderon and Mr. Castaneda
Sanchez applied for visas, and State has declared that all but one of the withheld documents
contain information used in considering those applications. See Vizcarra Calderon Vaughn
Index; Castaneda Sanchez Vaughn Index. Even if information compiled for the purpose of
informing visa decisions is not generally covered by section 222(f) until it is used to adjudicate
an actual application—which the Court doubts 4—it is beyond dispute that such information is
exempt when it has in fact been used by State in considering an actual visa application. See Pls.’
Opp. 14. Therefore, State has met its burden to show that all but one of the withheld documents
are covered by the INA and thus exempt from disclosure under FOIA.
Finally, one document—entitled “Visa Revocation Services”—contains details about
visas State issued Ms. Vizcarra Calderon. See Vizcarra Calderon Vaughn Index 13. Plaintiffs
4
The statute’s plain language is not limited to actual visa applications; it applies to any
information that “pertain[s] to the issuance or refusals of visas.” The phrase “pertaining to”
“discourages . . . a strict interpretation of Section 222(f).” Airaj v. United States, No. 15-983,
2016 WL 1698260, at *8 (D.D.C. Apr. 27, 2016). And information compiled for the purpose of
informing visa decisions appears to easily fall within that scope, even if it is compiled for use on
a future application.
5
contend that visa revocations are not an “issuance” or “refusal,” so documents pertaining to visa
revocations are not covered by section 222(f) of the INA. There is a split of opinion on this
precise question in this district that the D.C. Circuit has yet to resolve. Compare Darnbrough v.
Dep’t of State, 924 F. Supp. 2d 213, 218 (D.D.C. 2013) (stating in dicta that section 222(f) does
not “concern” visa revocations), with Soto v. Dep’t of State, No. 14-604, 2016 WL 3390667, at
*4 (D.D.C. June 17, 2016) (holding the opposite). This Court, however, is persuaded by Judge
Moss’ reasoning in Soto. He explained that “the issuance and revocation of visas represent two
sides of the same coin.” Soto, 2016 WL 3390667, at *4. The text of section 222(f) is
sufficiently broad to encompass revocations, even though “issuance of a visa is undoubtedly a
distinct act from the revocation of that same visa,” because “the relevant question is not one of
equivalence but of pertinence.” Id. (internal quotation omitted); see also id. (“[A]s a textual
mater, a decision to revoke a visa relates to, has a bearing on, or concerns the issuance of the
visa—it nullifies that action.”) (internal citation omitted). Based on this reasoning, the Court
concludes that the document pertaining to a visa revocation was properly withheld under
Exemption 3 as well. 5
5
Plaintiffs also contest the sufficiency of State’s segregability declarations and
seeks in camera review on that basis. Pls.’ Opp. 11–12. They question State’s
segregability analysis as to Exemption 3 only to the extent State would not confirm or
deny the presence of “quasi-refusal” designations in this case. Pls.’ Opp. 11–12.
Because the Court finds that State properly applied Exemption 3 even if quasi-refusals
are indicated in the documents, Plaintiffs request for in camera review is denied.
Regardless, the Court finds that State has met its burden to explain that it conducted a
line-by-line review of each withheld document and to show “with reasonable specificity”
that there is no further non-exempt information that could be segregated. See Armstrong
v. Exec. Office of the President, 97 F.3d 575, 578–79 (D.C. Cir. 1996); see also
Beltranena v. Dep’t of State, 821 F. Supp. 2d 167 (D.D.C. 2011) (upholding redactions
under section 222(f) with a similar level of segregability analysis as here).
6
For the foregoing reasons, the Court will grant Defendants’ Motion for Summary
Judgment. A separate Order shall accompany this memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: February 18, 2020
7
|
953 F.2d 632
Metropolitan Property & Liability Insurance Companyv.Cicchetti (Brian M.)
NO. 91-1494
United States Court of Appeals,First Circuit.
Oct 18, 1991
1
Appeal From: D.Mass.
2
AFFIRMED.
|
870 F.2d 1058
57 USLW 2594
UNITED STATES of America, Plaintiff-Appellee,v.Anthony DiCARLANTONIO (88-3151/3248), and John Prayso(88-3152/3249), Defendants-Appellants.
Nos. 88-3151, 88-3152, 88-3248 and 88-3249.
United States Court of Appeals,Sixth Circuit.
Argued Jan. 30, 1989.Decided March 17, 1989.Rehearing and Rehearing En Banc Denied June 1, 1989.
David L. Shroyer (argued), Columbus, Ohio, for U.S.
Max Kravitz (argued), Columbus, Ohio, for John Prayso.
Before KENNEDY and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge.
KENNEDY, Circuit Judge.
1
Anthony DiCarlantonio and John Prayso appeal their convictions for conspiracy to violate and actual violation of the Hobbs Act, 18 U.S.C. Sec. 1951. We affirm the conspiracy convictions; but we reverse appellants' convictions for substantive Hobbs Act violations, because the government failed to prove appellants' actions had an effect on interstate commerce.
2
DiCarlantonio was city attorney of Steubenville, Ohio; Prayso the fire chief. In May 1986, attorney Otto Jack sought DiCarlantonio's interpretation of a local fire ordinance which apparently prevented Jack's client--Jody Glaub--from placing propane tanks within the city limits. Prayso had previously ordered the removal of tanks owned by Glaub's company, Atlas Gas. DiCarlantonio told Jack he would discuss the situation with Prayso.
3
On May 12, 1986, Jack telephoned DiCarlantonio to check on his progress. DiCarlantonio suggested that Jack give money to the fire chief. Jack balked at the suggestion, protesting that a payoff would be illegal. During this telephone conversation, it was agreed that DiCarlantonio, Prayso, and Jack would meet the following day. At the May 13 meeting, Prayso observed that Glaub could "make a fortune" in the propane business, and said "We should all be on a percentage." Jack reiterated his objection that a kickback would be illegal. The three ultimately decided to reconvene the next day with Glaub in attendance.
4
Following the May 13 meeting, Glaub and Jack arranged to cooperate with the FBI. On May 14, DiCarlantonio and Prayso promised Glaub a "very reasonable" deal. It was agreed that Glaub would calculate his anticipated profit if the ordinance were changed, and DiCarlantonio and Prayso would receive a cut. On May 20, 1986, DiCarlantonio and Prayso agreed to a $30,000 "fee" for working to change the ordinance. They immediately began lobbying local officials in favor of altering the ordinance, but these efforts did not result in a change in the law.
5
On May 28, 1986, Glaub delivered $30,000 to DiCarlantonio and Prayso. The bribe money was provided from FBI funds, not the assets of Jody Glaub or Atlas Gas. Prayso was apprehended the same day with $15,000 stuffed in his socks. DiCarlantonio had a briefcase in his possession when arrested. When questioned by the FBI, DiCarlantonio claimed he did not have the key to the case. Confronted with the fact that the case had a combination lock, he replied that the combination was 1-3-3 and warned that the lock "sticks." Subsequent examination revealed that the combination was 2-2-4 and that the mechanism worked smoothly. The FBI obtained a search warrant, and the case was opened in the presence of DiCarlantonio and his attorney, revealing $15,000 in cash. DiCarlantonio exclaimed, "Oh, how did that get there?"
6
Prayso and DiCarlantonio claimed that they had been privately investigating Glaub. Unimpressed by this explanation, the jury convicted both defendants. The convictions were reversed on appeal, but after a second trial both were again convicted.
I.
7
The principal issue raised by this appeal is whether appellants' conduct constituted a substantive Hobbs Act violation. The Act punishes extortion that "in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce." 18 U.S.C. Sec. 1951. Appellants contend the government failed to prove that their scheme had any actual impact on interstate commerce. They point out that the flow of natural gas into Steubenville was stemmed not by their illegal acts, but by a preexisting valid ordinance. As for the payment of the bribe, appellants argue this had no effect on interstate commerce because the money came from the FBI, not Atlas Gas.
8
In order to be punishable as a substantive violation of the Hobbs Act, an extortionate scheme must have at least a de minimis effect on interstate commerce. United States v. Harding, 563 F.2d 299 (6th Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978). This is not a heavy burden, but we conclude that this is one of the rare cases where a de minimis effect on commerce cannot be found.
9
The de minimis test clearly would have been satisfied if Glaub had paid the bribe with the assets of Atlas Gas--a business in interstate commerce. However, Glaub used neither his own funds nor those of the company; instead, the bribe money was provided by the FBI. The government now argues that the payment of $30,000 in FBI funds affected interstate commerce by temporarily depleting the funds available to the agency. But while courts have found actual violations of the Hobbs Act where the defendant dealt with an FBI-created business,1 the mere receipt of government funds has never been enough to establish an actual effect on interstate commerce. In United States v. Rindone, the Seventh Circuit held that although receipt of FBI funds was sufficient to establish Hobbs Act jurisdiction for purposes of an attempt charge, "the extortion could not at the moment of the payoff have actually affected commerce." 631 F.2d 491, 494 (7th Cir.1980). This reasoning assumed that the receipt of FBI funds as a bribe had no impact on interstate commerce, and "the corollary of the Rindone analysis is that no actual commission of Hobbs Act extortion could be charged for the receipt of what were in fact FBI funds." United States v. Freedman, 562 F.Supp. 1378, 1383 (N.D.Ill.1983) (emphasis in original). Freedman observed:
10
[T]here could be no actual effect on interstate commerce when Rindone obtained FBI dollars, not dollars belonging to interstate enterpriser Harper. Thus only the possibility of convicting Rindone for an extortion attempt under the Hobbs Act obviated the government's need to show an actual effect on interstate commerce....
11
Id. at 1383 (emphasis in original). See also Brantley, 777 F.2d at 163 ("[W]e do not think the convictions of the substantive offenses [under the Hobbs Act] may be sustained on the basis of the defendants' mistaken assumption that commerce would be affected.").
12
The government protests that adopting the Rindone analysis would hamper law enforcement by requiring victims to use their own money even when cooperating with the authorities. However, we note that Rindone erects no barrier to attempt charges where FBI funds are used, and an attempted violation of the Hobbs Act carries the same potential penalties as a completed one.2
13
Alternatively, the government suggests that the scheme affected interstate commerce by restricting the flow of propane gas. But, in fact, appellants' actions had no effect on the amount of gas permitted in Steubenville. Commerce in propane was limited not by appellants' actions, but by a valid municipal ordinance, which had been enacted before Prayso became fire chief and DiCarlantonio law director. Nor did appellants succeed in increasing the flow of gas. Of course, the success of an extortionate scheme is not ordinarily a prerequisite to a substantive Hobbs Act violation. But in this case, appellants' failure to carry out the objects of the scheme meant that interstate commerce was in no way affected by the scheme. It did not take any funds out of the stream of commerce, nor did it increase or decrease the flow of propane.
II.
14
Appellants argue that their convictions for conspiracy to violate the Hobbs Act also must be reversed, because it became impossible to complete the violation once the FBI became involved. This argument misapprehends the law of conspiracy. While a substantive Hobbs Act violation requires an actual effect on interstate commerce, a conspiracy charge requires the government to prove only that the defendants' scheme would have affected commerce. "As with other conspiracies, a conviction of conspiring to obstruct commerce in violation of the Hobbs Act may be founded upon proof of an agreement to engage in conduct which would violate the statute." United States v. Brantley, 777 F.2d 159, 163 (4th Cir.1985), cert. denied, 479 U.S. 822, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986). Thus, the courts have concluded that "factual impossibility is no defense to an inchoate offense" under the Hobbs Act. United States v. Brooklier, 685 F.2d 1208, 1217 (9th Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983). In Brooklier, for example, the defendants challenged their Hobbs Act conspiracy convictions on the ground that the business involved had no nexus with interstate commerce because it was an FBI sham. The court rejected this defense, holding that no actual impact on interstate commerce need be shown to sustain a conspiracy conviction. Similarly, the Third Circuit, sitting en banc, upheld the Hobbs Act conspiracy convictions of government officials who accepted substantial payments from a fictitious "Arab Sheik," even though the transaction had no actual effect on interstate commerce. United States v. Jannotti, 673 F.2d 578 (3d Cir.) (en banc ), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). The court observed:
15
The Hobbs Act, by its own terms, encompasses the inchoate offenses of attempt and conspiracy to extort. Convictions for these offenses have been sustained notwithstanding the absence of any evidence of an actual effect on interstate commerce.
16
Id. at 592.
17
In the present case, a reasonable jury clearly could have found that appellants had conspired to extort money from Glaub and Atlas Gas, and that, if successful, this scheme would have affected commerce by depleting the assets of an enterprise in interstate commerce. Accordingly, the appellants' convictions of conspiracy to violate the Hobbs Act are affirmed.
III.
18
Appellant DiCarlantonio asserts that his sixth amendment right to confrontation was violated by the admission of statements by codefendant Prayso. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) held that a defendant's right to confrontation is violated when his nontestifying codefendant's confession implicating him is admitted at a joint trial. The Supreme Court recently held that Bruton does not bar the use of a codefendant's confession if it is redacted to omit any references to the defendant's name or existence, even if the codefendant's confession becomes incriminating when linked with other evidence adduced at trial. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).
19
In the present case, Prayso's confession was redacted to exclude statements which clearly incriminated DiCarlantonio. The trial court denied severance based on the redaction, and ordered counsel to "request a conference at the bench immediately prior to testimony concerning defendant Prayso's post-arrest statement to assure that all the necessary redactions have been made."
20
While Prayso's confession was redacted to eliminate any direct references to illegal acts by DiCarlantonio, it was not redacted to eliminate "any reference to [his] existence." Marsh, 481 U.S. at 200, 107 S.Ct. at 1703. Prayso's statement indicated that the bribery took place in the law director's office and that the law director (DiCarlantonio) was present at the time. Prayso's redacted confession identified DiCarlantonio by name as the law director. Finally, the statement also revealed that while a bribe of $30,000 was agreed upon, Prayso took only $15,000. The statements appear to incriminate DiCarlantonio without linkage to any other evidence. Moreover, the redaction did not exclude mention of DiCarlantonio's name and existence, as Marsh appears to require.
21
However, DiCarlantonio failed to challenge the incomplete redaction before the statements were admitted, as required by the trial court's order. Indeed, the most damaging portion of the confession--which named DiCarlantonio and placed him in the office at the time the $30,000 was solicited--was admitted after DiCarlantonio's counsel stated in a bench conference that he did not consider it improper. Even if this action by counsel is not deemed a waiver of any objection, in light of the strength of the evidence of appellant's guilt, any error was harmless. See Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ("The mere finding of a violation of the Bruton rule ... does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect ... so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.").
22
Prayso also raises a Bruton issue. He asserts the District Court erred in admitting DiCarlantonio's out-of-court statements concerning the briefcase and its contents. However, these statements did not even hint at Prayso's existence. They were incriminating as to Prayso only when linked with other evidence. Therefore, the admission of DiCarlantonio's statements does not present a Bruton problem.
IV.
23
On rebuttal, Agent Chadichimo testified that he took DiCarlantonio's briefcase to a locksmith for examination. The locksmith told Chadichimo that the combination to the lock was 2-2-4, not 1-3-3 as DiCarlantonio first told the authorities. Chadichimo also testified that the locksmith found that the lock did not stick when the combination 2-2-4 was used. DiCarlantonio argues that this testimony was admitted in violation of Fed.R.Crim.P. 16, because the results of the locksmith's tests were not revealed to the defendants before trial.
24
Rule 16 requires the government to disclose the results of tests "intended for use by the government as evidence in chief." Agent Chadichimo's testimony was not part of the government's case in chief; it was offered to rebut defense testimony by Mrs. DiCarlantonio in support of her husband's claim that the lock "sticks." "Rebuttal witnesses are a recognized exception to all witness disclosure requirements." United States v. Windham, 489 F.2d 1389, 1392 (5th Cir.1974). Therefore, the District Court did not err in allowing Agent Chadichimo's testimony.
V.
25
Agent Chadichimo testified that when DiCarlantonio's briefcase was pried open to reveal the $15,000, DiCarlantonio cried "Oh, how did that get there?" DiCarlantonio had been permitted to confer with his attorney subsequent to his arrest, and his attorney was present when the statement was made.3 He now argues that the trial court erred in not ordering a hearing to determine whether he had been advised of his Miranda rights and whether he had voluntarily waived those rights in making the statement, even though he neither requested such a hearing at trial nor moved to suppress the statements before trial as required by Fed.R.Crim.P. 12(b)(3).
26
Counsel should have raised any objection to this evidence in a pretrial motion to suppress under Rule 12. Appellants' failure to make such a motion constitutes a waiver of any objection. Fed.R.Crim.P. 12(f). See, e.g., United States v. Ostertag, 619 F.2d 767, 771 (8th Cir.1980). Moreover, even assuming this evidence should have been excluded, the error was harmless in light of the strong evidence of DiCarlantonio's guilt.
VI.
27
Appellants' remaining assignments of error are without merit.
28
The verdicts finding appellants guilty of conspiracy to violate the Hobbs Act are AFFIRMED. Appellants' convictions for completed Hobbs Act violations are REVERSED.
1
See, e.g., United States v. Frasch, 818 F.2d 631, 634-35 (7th Cir.1987) (sufficient nexus with interstate commerce where sham FBI enterprise was a purchaser of goods in interstate commerce). Cf. United States v. Brantley, 777 F.2d 159, 161-63 (4th Cir.1985), cert. denied, 479 U.S. 822, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986) (mere movement of agents and equipment insufficient nexus to interstate commerce where sham FBI operation had no interstate commercial transactions)
2
Appellants contend the District Court erred in permitting FBI Agent Chadichimo to testify to the interstate character of the FBI. They assert that this testimony was improper because it permitted the jury to convict on the legally infirm theory that depletion of FBI funds constitutes obstruction of interstate commerce. Since we reverse appellants' convictions for substantive Hobbs Act violations, this is a moot issue
3
Defense counsel did not contest the U.S. Attorney's representation to the trial judge that DiCarlantonio had been informed of his rights
|
553 F.2d 425
95 L.R.R.M. (BNA) 2615, 81 Lab.Cas. P 13,258
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.Arthur COLLIER, d/b/a Arthur Collier Electric Company, Respondent.
No. 76-3104.
United States Court of Appeals,Fifth Circuit.
June 2, 1977.
Elliott Moore, Deputy Assoc. Gen. Counsel, Michael S. Winer, Supervisor, Marjorie Gofreed, Atty., John S. Irving, Jr., Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.
Lawrence H. Clore, Philip J. Pfeiffer, Houston, Tex., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board (Texas Case).
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
GEWIN, Circuit Judge:
1
The National Labor Relations Board ("the Board") seeks enforcement of its order that Arthur Collier Electric Company ("Collier Electric") recall Odis Brinkley and Vester Havard to the first journeyman electricians' jobs for which they are qualified, make Brinkley and Havard whole for loss of earnings, cease and desist from interfering with, restraining, or coercing employees in the exercise of their section 7 rights, and post appropriate notices. The order results from charges by the International Brotherhood of Electrical Workers, Local 716, that Collier Electric violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA")1 by threatening discharge, by actually discharging, and by refusing to recall the two employees, all on account of their union activities. The Administrative Law Judge ("the Judge") found only that Collier Electric violated section 8(a)(3) by "refusing to consider Havard or Brinkley for recall." The Board adopted his findings and proposed remedy. 223 N.L.R.B. No. 145 (1976). We deny enforcement.
2
Collier Electric, with its home office in Temple, Texas, does electrical work on construction projects. The company employed Brinkley on February 13, 1975 and Havard on March 6, 1975 as journeyman electricians. Shortly thereafter each became a union member and agreed to help organize the employees of Collier Electric. In late April, after working on several other jobs, Brinkley and Havard were transferred to the company's Ralston-Purina job at Madisonville, Texas. In late April and early May the company had its Madisonville crews work periodically at a job in Jewett, Texas. Apparently these temporary assignments to Jewett were inconvenient for Brinkley and Havard, and foreman Arnold Pechal had trouble with their substantial absenteeism.
3
Although Collier Electric began some new jobs in 1975, it experienced a steady diminution in overall work load. Consequently, the company's workforce was reduced by about 50 employees from January, 1975 to the hearing date in November, with some 20 journeymen laid off between January and June, 1975. Because of this shrinkage the company's president, Arthur Collier, needed to find jobs for his long-time employees. On Saturday, May 17, 1975 Pechal discussed the Madisonville job with Mr. Collier and mentioned his problem with Havard's and Brinkley's absenteeism. Collier referred to his need to find jobs for his long-time employees and told Pechal he would visit the jobsite the next week. He came to the Madisonville jobsite on Wednesday, May 21, and told Brinkley and Havard that in order to make room for his long-time employees Friday, May 23, would be their last day on the job. Finding that other Collier Electric employees, much less the supervisory personnel, did not know about Brinkley's and Havard's interest in the union before the layoffs, the Judge concluded that there was no showing of antiunion animus upon which to base a section 8(a)(3) layoff charge.2 That finding is not now in dispute.
4
Just as it is clear that neither Mr. Collier nor other supervisory personnel were aware of the union activities of Brinkley and Havard before the layoffs, it is clear that Collier, Pechal, and other supervisors were aware of such activities soon thereafter. On the Wednesday Mr. Collier informed them of their layoffs, Brinkley and Havard informed Pechal of their union membership and solicited his membership. That day they solicited at least two other Collier Electric workers for union membership. Mr. Collier soon learned of Brinkley's and Havard's union activities from Pechal and on Thursday, May 22, from Brinkley himself in a telephone conversation.
5
On Friday, May 23, Brinkley and Havard showed up at the Madisonville site and were told by Pechal that they would have to go to the Collier Electric office in Bryan to pick up their paychecks and dismissal slips. Havard then told Pechal that if they had any trouble getting their checks in Bryan "they were instructed to clean up shop," that "they had ten guys around the corner waiting to help them" if necessary, and that if an incident occurred at the Bryan office "none of the Collier guys would be safe in Bryan" any longer. Pechal assured Brinkley and Havard that the Collier employees wanted no trouble with them. Pechal asked them if they held a grudge against him, they said no, and he shook hands with them and accompanied them to their truck. Brinkley got into the truck, reached under the seat, pulled out his .357 magnum pistol, and told Pechal, "If you cause me any kind of trouble or problems, I'll use this on you." Pechal assured Brinkley that he would cause him no trouble. Pechal kept his word and did not immediately inform either Mr. Collier or the police about the incident.3
6
Although Pechal, who has no role with respect to hiring, testified that a "couple" of new journeymen were hired after May 23, he could name only one W. Springer. Mr. Collier testified that Springer was the only journeyman hired between May 23 and the hearing in November, and Springer was an exceptional case, as he was highly recommended by some of Mr. Collier's close acquaintances in Temple. The only testimony concerning the date Springer was hired was Pechal's statement that Springer began work on his job "roughly in July." There is no evidence that any of the laid off electrical journeymen were recalled during 1975.
7
The instant unfair labor practice charges were filed on June 25, 1975. When Collier Electric received notice of the charges,4 Mr. Collier conducted an "in-depth investigation" of the facts surrounding the employment and layoffs of Brinkley and Havard. From that investigation Mr. Collier learned for the first time, inter alia, of the gun incident. On the basis of the investigation Mr. Collier determined that the two never would be eligible for recall. The Judge concluded that Mr. Collier was motivated by antiunion animus and consequently that his determination never to recall Brinkley and Havard was based on their union membership and activities. The Judge further concluded that Mr. Collier's asserted reasons for his decision do not stand "the test of even superficial scrutiny." Although Pechal's testimony about the gun incident was uncontradicted, the Judge discounted it, saying that the incident "was one (of) mere bravado on the part of Brinkley." Thus, the Judge concluded that Collier Electric's "refusal to consider" Brinkley and Havard for reemployment constituted a violation of section 8(a)(3).
8
We must enforce the Board's order if it rests upon substantial evidence considering the record as a whole. Universal Camera Corp. v. NLRB,340 U.S. 474, 487-91, 71 S.Ct. 456, 463-66, 95 L.Ed. 456, 467-69 (1951); NLRB v. Walton Mfg. Co., 369 U.S. 404, 808, 82 S.Ct. 853, 855, 7 L.Ed.2d 829, 832 (1962); NLRB v. Brennan's, Inc., 5 Cir., 366 F.2d 560, 562, 565, modified, 368 F.2d 1004, 1005 (5th Cir. 1966). Our difficulty here, however, is that having antiunion animus by itself does not violate section 8(a)(3). There must also be proof that the employer had an opportunity to and did in fact discriminate. E. g., NLRB v. Brown, 380 U.S. 278, 286, 85 S.Ct. 980, 985, 13 L.Ed.2d 839, 846 (1965); Mueller Brass Company v. NLRB, 544 F.2d 815, 819 (5th Cir. 1977); Florida Steel Corporation v. NLRB, 529 F.2d 1225, 1234 (5th Cir. 1976); Firestone Tire & Rubber Co. v. NLRB, 449 F.2d 511, 513 (5th Cir. 1971). Discrimination consists of treating like cases differently. Mueller Brass, supra; Frosty Morn Meats, Inc. v. NLRB, 296 F.2d 617, 621 (5th Cir. 1961).
9
Hence, the General Counsel had the burden of proving that Collier Electric had an opportunity and did in fact fail to recall or to consider Brinkley and Havard for reemployment while considering others for recall. NLRB v. U.S. Gypsum Co., 206 F.2d 410, 413-14 (5th Cir. 1953); Indian Head Hosiery Co., Inc., 199 N.L.R.B. No. 75 (1972). The General Counsel did not satisfy that burden here, at least for the period from the time of the layoffs to the time Mr. Collier decided never to consider Brinkley and Havard for recall or rehire. There is simply no evidence in this record that Collier Electric recalled or even considered for recall journeymen electricians who were laid off in 1975 for economic reasons. Thus the record does not show who, if anyone, was recalled and whether Collier Electric was aware of the pro or antiunion attitudes of anyone recalled. Therefore the Board could not find that like cases were treated differently.
10
The hiring of Springer does not provide the needed proof. Springer was a new hire, not a recalled employee. Moreover, Springer was an exceptional case; Mr. Collier hired him on the strong recommendation of personal acquaintances. Perhaps even Springer was preferred over laid-off journeymen with neutral or antiunion attitudes. Finally, there is no proof that Springer was hired before Mr. Collier's determination that Brinkley and Havard were ineligible for recall.
11
The Board contends, however, that such proof was unnecessary because Mr. Collier determined never to consider the two men, even if he eventually needed to recall journeymen or hire new ones. But as Judge Wisdom has written, "If, however, the misdeeds of the employee are so flagrant that he would almost certainly be fired anyway, there is no room for discrimination to play a part." Frosty Morn Meats, supra, at 621. That principle applies as well to cases involving failure to recall. See, e. g., Sports Coach Corporation, 218 N.L.R.B. No. 158 (1975) (poor attitude); Morrison-Knudsen Company, Inc., 204 N.L.R.B. 48 (1973) (instigating work stoppages in violation of a no-strike clause).
12
The Judge thought Pechal exaggerated Brinkley's and Havard's threats of bodily harm. Yet the occurrence of the gun incident and the dialogue preceding it are not in dispute. This is not a case of "mere animal exuberance." Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293, 61 S.Ct. 552, 555, 85 L.Ed. 836, 841 (1941); Overhead Door Corporation v. NLRB, 540 F.2d 878, 882 (7th Cir. 1976). On these facts alone we have no doubt that Mr. Collier was justified in refusing ever to consider Brinkley and Havard for recall or reemployment. Compare Mueller Brass Co., supra, at 819-20 (employee's "conduct and statements were vulgar and offensive by any standard of decency"); Overhead Door Corporation, supra (enforcement of Board's reinstatement order denied as to employee who carried a concealed gun to the picket line and pointed it at company property.)5
13
ENFORCEMENT DENIED.
1
29 U.S.C. §§ 158(a)(1), (3)
2
The section 8(a)(1) charge was based on allegations that another Collier Electric supervisor, Marvin Fox, on May 2, 1975 threatened Havard with discharge because of his union membership or activities. The Judge found that Fox did not make the alleged threat and recommended dismissal of that part of the complaint. As noted above, the Board adopted the Judge's decision in toto. Like the findings as to the layoffs, the findings as to the section 8(a) (1) charge are not now disputed
3
Only Pechal gave an account at the hearing of the gun incident. Brinkley and Havard were called as witnesses in the General Counsel's case-in-chief. Pechal was subsequently called by the company, and neither Brinkley nor Havard were recalled to rebut Pechal's testimony
4
There is no evidence of exactly when the investigation was conducted or the decision never to recall Brinkley and Havard was reached, as there is no evidence of exactly when the company received notice of the charges. The NLRA only requires that a charge be filed and notice thereof served on the charged party within six months of the event alleged to be an unfair labor practice. 29 U.S.C. § 160(b). The regulations only state that "(t)he regional director may cause a copy of the charge to be served upon" the charged party, but that such notice is not a substitute for the six-month requirement of the statute. 29 C.F.R. § 101.4. At oral argument the Board's counsel stated that the charges were filed "about a month after the layoffs" and that the employer's investigation occurred "at that time." We will therefore consider the investigation and decision not to recall to have occurred in very early July, 1975
5
See also Florida Steel Corp., supra, at 1233-34 (discharge justified where the employee raised his fist and cursed a supervisor); Trailmobile Division, Pullman Incorporated v. NLRB, 407 F.2d 1006, 1018 (5th Cir. 1969) (reinstatement denied to striking employees who intimidated and assaulted nonstriking employee); NLRB v. Big Three Welding Equipment Co., 359 F.2d 77, 83 (5th Cir. 1966) (reinstatement denied to employees who pilfered company property); NLRB v. Bin-Dicator Company, 356 F.2d 210, 215-16 (6th Cir. 1966) (reinstatement denied to employee who made "fearsome threats and gestures" to supervisors); NLRB v. R.C. Can Company, 340 F.2d 433, 435-36 (5th Cir. 1965) (reinstatement denied to employee who threatened to harm the plant manager); NLRB v. Coca-Cola Bottling Co., 333 F.2d 181, 185 (7th Cir. 1964) (employee disqualified from reemployment by "his pattern of falsification and deceit during his employment"); NLRB v. National Furniture Mfg. Co., 315 F.2d 280, 286 (7th Cir. 1963) (reinstatement denied because of "basic antagonism" between employee and employer)
|
588 F.2d 833
19 Fair Empl.Prac.Cas. 887
Blackv.Hunter Packing Co.
No. 77-1314
United States Court of Appeals, Seventh Circuit
8/17/78
E.D.Ill., 427 F.Supp. 152
REVERSED AND REMANDED
|
[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1057
UNITED STATES,
Appellee,
v.
GLENN P. LACEDRA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Glenn P. Lacedra on brief pro se.
Donald K. Stern, United States Attorney, and Robert E.
Richardson, Assistant United States Attorney, on brief for
appellee.
May 28, 1998
Per Curiam. Pro se appellant, Glenn P. LaCedra,
appeals from the district court's partial denial of his Fed. R.
Crim. P. 41(e) motion seeking the return of certain property
which had been seized pursuant to a search warrant, or, in the
alternative, for compensation for the seized property. We
affirm.
The court did not abuse its discretion or commit
error in declining to return certain firearms and related
property to LaCedra, who is a convicted felon. See 18 U.S.C.
922(g)(1) (making it unlawful for persons convicted of crimes
punishable by imprisonment for greater than one year to possess
firearms or ammunition). Nor did the court abuse its
discretion or err in failing to order compensation for the
firearms and related property since the government had
represented that it would surrender these items to any third
party lawfully purchasing them from LaCedra.
The district court also properly declined to order
the return of certain "investigative paperwork" casually
identified by LaCedra. As best we can glean from the record,
the materials in question have no market value but were for the
most part materials either used in connection with the planned
murder or capable of being used in another attempt. That is
reason enough for the district court to decline to order the
government to restore those materials to LaCedra.
Affirmed. See Loc. R. 27.1.
|
814 F.2d 656
*Mattev.Dow Chemical Co.
86-3052
United States Court of Appeals,Fifth Circuit.
3/6/87
1
M.D.La.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
|
772 F.2d 899
Fisherv.Moore
85-6142
United States Court of Appeals,Fourth Circuit.
8/15/85
1
E.D.Va.
DISMISSED
|
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NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
OBJECTIONS TO THE COURT'S CHARGE AT GUILT-INNOCENCE
COMES NOW, RICHARD BROWN, Defendant in the above styled and numbered
cause, after both sides have rested and closed the evidence at the guilt-innocence phase of the
trial and before the Court's charge has been read to the Jury and submits these his objections to
the Court's proposed charge as follows:
I.
The Charge fails to contain an instruction to the jury on the law of extraneous offenses
and under what circumstances and for what specific purposes they may be considered by the
Jury.
SUSTAINED _ _ _ __
OVERRULED _ _ _ __
II. ,
The Court's charge fails to include an instruction to the definition of beyond a reasonable
doubt.
SUSTAINED _ _ _ __
OVERRULED _ _ _ __
OBJECTIONS TO THE COURT'S CHARGE AT GUILT-INNOCENCE Page 1
ENTRAPMENT
III.
The Court's charge fails to include the defensive issue, raised by the evidence, of the law
of voluntariness of the act, Texas Penal Code Section 6.01(a) or to apply the same law to the
facts of this case so as to instruct the jury thereon.
SUSTAINED _ _ _ _ __
OVERRULED _ _ _ __
IV.
The charge fails to instruct the jury upon the lesser included offense of assault by contact,
Texas Penal Code Section 22.01(a)(3), although the same is raised by thl evidence herein.
SUSTAINED _ _ _ _ __
OVERRULED _ _ _ _ ___
V.
There IS insufficient evidence to wJarrant submission of a charge of
herein and Defendlnt therefore objects to
said issue being submitted to the jury. /
SUSTAINED - - - ' - - - - - - -
OVERRULED _ _ _ _ __
GEORGE B. MACKEY
101 SummitAvenuk,I
Suite 318
Fort Worth, TX 76il02
817-336.,1008
817-336-5437 Fax
SBN 1279500
ATTORNEY FOR DEFENDANT
OBJECTIONS TO THE COURT'S CHARGE AT GUILT-INNOCENdE Page 2
ORDER
.J
Both sides having rested and closed and Defendant having presented the above and
foregoing Objections to the Court's Charge prior to its reading to the jury at the guilt-innocence
phase of the trial and the court hereby enters its orders on said objections as reflected above to
which Defendant has his exceptions in open court on those matters which have been overruled
and as to those matters sustained said matters are hereby ordered to be incorporated in said
charge.
Signed this the _ _ _ _ _ _ _ day of _ _ _ _ _ _ _ , 2012.
JUDGE PRESIDING
CERTIFICATE OF SERVICE
I hereby certify that on the _ _ _ _ _ _ _ _ day of _ _ _ _ _ _ _ , 2012, a true
and correct copy of the above and foregoing Objections was delivered to the Assistant District
Attorneys of Tarrant County, Texas who are handling this case ..
GEORGE B. MACKEY
OBJECTIONS TO THE COURT'S CHARGE AT GUILT-INNOCENCE Page 3
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
ORDER
On _ _ _ _ _ _ _ _ _ , 2012, came on to be considered RICHARD BROWN's
Motion to Suppress the Forensic Interview of the Child With C.P.S., Alliance For Children, Or
Other Law Enforcement Agency, and saiq motion is hereby
(Granted) (Denied)
JUDGE PRESIDING
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANTCOUNTY,TEXAS
MOTION TO INSTRUCT VENIREMAN AND JURORS TO NOT DISCUSS OR
RESEARCH USING THE INTERNET OR ELECTRONIC DEVICES OR TO SEIZE
SAID DEVICES
Motion No. 16
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes RICHARD BROWN, Defendant, in the above-styled and numbered cause,
by and though his attorney of record, GEORGE B. MACKEY, and respectfully requests this
Court to instruct venireman and jurors to not discuss or research using the internet or electronic
devices and that this Court seize any hand-held devices. In support hereof, the defendant would
show:
I.
The Defendant has a right under the Due Process clause of the United States Constitution
and the Texas Constitution to a fair and impartial jury that is free from outside information, and
disseminating facts and/or information concerning the case to those not on the jury.
II.
The Defendant would show that most Americans have access to the Internet including
social networks, such as Facebook, MySpace, Twitter, Yahoo, Hotmail, Google, and/or using
their cell phones, lap tops, and desktops.
III.
The Defendant requests the Court to instruct the jury panel and the jurors not to use the
Internet to investigate or otherwise obtain information by way of research regarding any issue in
the case nor to disseminate any information about the case to any person specifically, but not
limited to Facebook, MySpace, Twitter or any other online social network.
IV.
The Defendant further requests that the Court during deliberations seize from all jurors
all electronic communication devices such as phones (e.g., iPhone or- Blackberry), iPods,
sidekicks, laptops, and/or notebooks.
v.
The Defendant further requests that the Court ensure that the jurors do not have internet
access while sequestered in a hotel during deliberations.
VI.
The Defendant further requests that the Court give the following instruction:
"You are instructed that the only evidence that you can consider is the testimony
and the evidence that comes from the witness stand. This simply means that you
can only consider the answers a witness gives in response to questions and any
evidence, such as written documents, that is admitted into evidence for your
consideration.
In times past, jurors have researched issues involved in their cases from outside
sources, such as the internet, reference books, and friends or family members.
This is absolutely prohibited.
The rule is simple. You are not to discuss the facts of this case with anyone nor
do any independent research and when you deliberate, you must only consider the
testimony given by witnesses and evidence introduced during trial."
WHE~FORE, PREMISES CONSIDERED, RICHARD BROWN prays that this
Honorable Court grant this his motion to instruct venireman and jurors to not discuss and/or
research any issue involving this trial using the internet or electronic devices, to seize said
devices, and limit juror access to the internet while sequestered.
Respectfully submitted,
George B. Mackey
101 Summit Avenue, Suite 318
Fort Worth, Tx 76102
Tel: (817) 336-1008
Fax: (817) 336-5437
By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
GEORGE B. MACKEY
State Bar No. 12779500
Attorney for RICHARD BROWN
CERTIFICATE OF SERVICE
This is to certify that on , 2012, a true and correct
copy of the above and foregoing document was served on the District Attorney's Office, Tarrant
County, Texas, byhand delivery.
GEORGE B. MACKEY
NOTICE OF HEARING
This matter is to be heard by the Judge of Criminal District Court Number Three of
Tarrant County, Texas, on the __ day of , 2012, at .m.
GEORGE B. MACKEY
..
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANTCOUNTY,TEXAS
ORDER
On _ _ _ _ _ _ _ _ _ , 2012, came on to be considered RICHARD BROWN's
Motion To Instruct Venireman and Jurors To Not Discuss Or Research Using The Internet or
Electronic Devices Or To Seize Said Devices. and said.motion is hereby .
(Granted) IT IS THEREFORE ORDERED that the jury shall be instructed that they cannot use
any electronic communication devices during the trial to discuss, research, or disseminate any
information regarding evidence produced or testimony presented.
IT IS FURTHER ORDERED that the Bailiff shall seize all electronic communication devices
from the jurors during deliberation.
(Denied) to which the Defendant excepts.
JUDGE PRESIDING
13]
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
MOTION TO SUPPRESS THE FORENSIC VIDEO INTERVIEW OF THE CHILD
WITH C.P.S., ALLIANCE FOR CHILDREN, OR OTHER LAW ENFORCEMENT
AGENCY
Motion No.
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes RICHARD BROWN, Defendant, and files this Motion To Exclude the
Forensic Interview of the Child in this cause, and in support would show:
1. Statements to Forensic Investigators violate the Defendant's right to confrontation
and cross-examination under the United States Constitution, 6th Amendment and the Texas
Constitution, Article I, Section 19, and Crawford v. Washington, 124 S.Ct. 1354; 541 U.S. 36,
(2004).
:2. Where a child describes past events during an interview with a forensic
interviewer and there is no on-going emergency being addressed in the interview, the resulting
statement should be deemed testimonial. Here the videotaped interview of the child was watched
outside the interview room by the investigating Detective, and spoke with the Forensic
Interviewer during the child's interview in order to extract other evidence.
3. Where a collateral source reports past criminal behavior by the defendant to an
organization statutorily required to investigate such complaints (in this case, Child Protective
Services and the Fort Worth Police Department) and where the record contains no evidence that
the contact served anything other than an investigative purpose, the statements will be found to
be testimonial. Wells v. State, 241 S.W.3d 172, 175-76 (Tex. App.-Eastland 2007, pet. refd)
4. Interviews of the alleged injured party and video/audio of same by caseworkers
with Alliance for Children and/or Child Protective Services, or other law enforcement agency,
constitute inadmissible evidence under the grounds stated in this motion.
5. The interview of the alleged victim by the forensic interviewer was improperly
suggestive. Repetition of questions designed to elicit answers favorable to the prosecution
constitutes improper suggestibility, as well.
6. Defendant requests the Court to suppress the forensic interview of the child in this
case.
WHEREFORE, PREMISES CONSIDERED, RICHARD BROWN prays that the
Court exclude the forensic interview of the child as requested.
Respectfully submitted,
George B. Mackey
101 Summit Avenue, Suite 318
Fort Worth, Tx 76102
Tel: (817) 336-1008
Fax: (817) 336-5437
By: __________________________________
GEORGE B. MACKEY
State Bar No. 12779500
Attorney for RICHARD BROWN
I '·
CERTIFICATE OF SERVICE
This is to certify that on , 2012, a true and correct
copy of the above and foregoing document was served on the District Attorney's Office, Tarrant
County, Texas, by hand delivery.
GEORGE B. MACKEY
ORDER FOR A SETTING .
On , 2012, the Defendant filed a Motion to Suppress the
Forensic Interview ofthe Child With C.P.S., Alliance For Children, Or Other Law Enforcement
Agency. The Court finds that the party is entitled to a hearing on this matter, and it is
THEREFORE ORDERED that a hearing on this motion IS set for
___________________________,2012,m _____
Signed on _________________________, 2012.
JUDGE PRESIDING
r·. .· ·•
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANTCOUNTY,TEXAS
MOTION TO SUPPRESS TESTIMONY OF CHILD WITNESS
Motion No.
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes RICHARD BROWN, Defendant, and moves the Court to dismiss the
indictment in this cause, or in the alternative to suppress the testimony of the alleged child victim
and for cause would show the Court as follows:
I.
Defendant is charged in this cause by indictment alleging eleven counts involving sexual
abuse of Defendant's niece, age 8, alleged to be the victim. The State will most likely seek to
introduce the testimony o the alleged victim in the trial of this cause.
II.
The indictment arose from an investigation conducted by the Fort Worth Police
Department, Texas Department of Human Services, Alliance For Children, and other agencies of
the State unknown to the Defendant. During these investigations, the alleged child victim was
repeatedly interviewed by representatives of those agencies. During all of the interviews, notes
were taken of the questions asked and the responses of the witness. Some of the interviews were
videotaped and otherwise recorded. The recordings of the interviews contain inconsistent
statements of the witness.
Motion To Suppress Testimony of Child Witness Page I
III.
The techniques used in these interviews were inherently suggestive in that the child
witness was repeatedly questioned by adult authority figures in a leading and suggestive manner.
The cumulative effect of the repeated suggestive interviews was to taint the memory of the child
witness, a phenomenon known as secondary gain. (See attached affidavit). Secondary gain, in
effect, substitutes the knowledge implanted in the child's memory by the suggestive interviews
for the child's memory of the actual event. The inconsistencies in the taped statements and other
statements of the child indicate a substantial likelihood that secondary gain has occurred. There
further exists a substantial risk the testimony of the alleged child victim s now irreparably tainted
and the facts that the child will elate in their testimony at trial will be the result of the suggestive
interrogation rather than the child's accurate recollection of the events. The process is
irreversible and a fair trial cannot be had if the testimony of the alleged child victim is presented.
IV.
Because the State's action in this case has rendered a fair trial impossible Defendant's
right to due process guaranteed by the Fourteenth Amendment of the Constitution ofthe United
States and right to due course of law guaranteed by Art. 1 Sec. 19 of the Texas Constitution has
been violated.
v.
Since the State's case rests almost entirely on the testimony of the child, the only
meaningful remedy would be dismissal of the indictment herein or in the alternative suppression
of the testimony of the child and all statements made by the witnesses which are shown to be the
result of the improper investigative technique.
Motion To Suppress Testimony of Child Witness Page 2
MEMORANDUM
A. Due process.·
The Courts have long recognized that improper interview techniques by law enforcement
in the context of lineups and photo lineups may be so impermissibly suggestive as to lead to a
substantial likelihood of misidentification. Such procedures, therefore render the testimony of
the identification witness so untrustworthy that introduction of the evidence constitutes a
violation of the due process clause of the Fourteenth Amendment of the United States
Constitution. See, Foster v. California 394 U.S. 440 (1969); Stovall v. Denno, 388 U.S. 293
(1967).
Recently, in Ex Parte Bradley, 781 S.W.2d 886 (Tex.Crim.App. 1989), the Court of
Criminal Appeals observed that improper investigative techniques in contexts other than
identification procedures may so affect the trustworthiness of the proceeding as to constitute a
violation of the due process clause of the Fourteenth Amendment and the due course of law
clause of Article 1 Sec. 19 of the Texas Constitution. Ex Parte Bradley, at 891 of781 S.W.2d.
While studies on the effect of improper interview techniques of child witnesses are a
recent innovation, their conclusions indicate a real danger of irreparable damage to the child
victim's ability to relate accurately the occurrences in question. Psychologist experienced in the
field can evaluate the impact of investigative techniques on the memory of a child. The social
sciences have begun to recognize the phenomenon of secondary gain which amounts to the
substitution of facts learned during the interview process for those observed by the child at the
time of the event in question. The process renders the child incapable of accurately remembering
the event in question.
Motion To Suppress Testimony of Child Witness Page 3
' I
B. Suggested procedure.
Another analogous phenomenon which has been dealt with by the courts is the
hypnosis of a witness in an attempt to aid recall. In Zani v. State, 758 S.W.2d 233
(Tex.Crim.App. 1988), the Court of Criminal Appeals dealt directly with the issue of the
admissibility of a witness' testimony after hypnosis. The opinion reviewed the opinion
of other courts and scientific literature on the subject of hypnosis and noted the dangers
associated with the use of the procedure on witnesses in an attempt to enhance their
memory of an event. Generally, the noted dangers can be categorized as follows:
1. Hypersuggestibility. The witness is extremely susceptible while under
hypnosis to suggestion of facts which the witness later recalls as having
actually occurred. Often this may be the result of the witnesses
compelling desire to please the interviewer by "remembering" facts
suggested by the interviewer.
2. Loss of crl.tical judgment. The witness loses his critical judgment and
causes him to give credence to memories so vague and fragmentary they
would not have relied on them before being hypnotized.
3. Confabulation.Neither the subject nor the interviewer can distinguish
between real memories and "pseudomemories" arising from various
causes including the two described above. Even after the interview ends
the subject remains unable to distinguish between true memories and
confabulation.
4. Memory "cementing".The witness becomes much more sure of a vague
memory after the session. Often the memory of the witness becomes
enhanced by suggestion occurring during the session and the subject then
can not distinguish his actual memory from his memory acquired during
the session. · He becomes more sure of his recollection because of the
enhancement supplied by the session.
Zani v. State, at 237-238 of758 S.W.2d.
The Zani Court did not discuss the admissibility of the testimony of a witness who has
been previously hypnotized in the context of due process but instead analyzed its admissibility in
light of a defense objection that "there is no proper basis for permitting such testimony as a
matter of scientific reliability". Zani v. State, at 235 of 758 S.W.2d. In light of the foregoing
Motion To Suppress Testimony of Child Witness Page 4
\ .;. . ~
recognized uncertainties of posthypnotic testimony the Court fashioned a rule for admissibility to
protect the integrity of the fact finding process. The Court held:
"We conclude that because of the uncertainties inherent in posthypnotic testimony
it is appropriate to require the proponent of such testimony to demonstrate to the
satisfaction of the trial court, outside the jury's presence, by clear and convincing
evidence, that such testimony is trustworthy."
Zani v. State at 243 of758 S.W.2d.
The analogy is clear. The danger of secondary gain resulting from improper questioning
of a child witness is very much like the outlined dangers associated with hypnotically enhanced
testimony. Defendant urges that a similar burden be placed on the State to establish the
reliability of the testimony of the child once it has been established that the improper questioning
has occurred. In the instant case expert testimony will establish the suggestiveness of the
procedures used.
WHEREFORE, Defendant prays that upon final hearing of this motion that the Court
dismiss the indictment herein or in the Alternative suppress the testimony of the alleged child
victim as well as any statements made by , concerning the subject matter of the
indictment and instruct the state not to seek to introduce the suppressed evidence in any manner
at the trial of this cause.
Respectfully submitted,
George B. Mackey
101 Summit Avenue, Suite 318
Fort Worth, Tx 76102
Tel: (817) 336-1008
Fax: (817) 336-5437
By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
GEORGE B. MACKEY
State Bar No. 12779500
Attorney for RICHARD BROWN
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Motion was
hand delivered to the District Attorney of Tarrant County, Texas on this the _ _ day of March,
2012.
GEORGE B. MACKEY
Motion To Suppress Testimony of Child Witness Page 5
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
MOTION TO SUPPRESS SANE NURSE TESTIMONY SINCE SUCH EVIDENCE
VIOLATES CRAWFORD V. WASHINGTON I MELENDEZ-DIAZ AND VIOLATES
KELLY V. STATE FOR RELEVANCE AND RELIABILITY
Motion No.
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes RICHARD BROWN, Defendant, and files this Motion To Suppress SANE
Nurse Testimony Since Such Evidence Violate Crawford V. Washington/Melendez-Diaz And
Violates Kelly V. State For Relevance And Reliability, and in support would show:
1. Statements made to medical personnel may be testimonial hearsay depending on
the context of the statement. De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008).
Where a child describes past events during an interview with a forensic interviewer and there is
no on-going emergency being addressed in the interview, the resulting statement will be deemed
testimonial.
2. The admission of the testimony of the SANE nurse at Cook Children's Hospital
as to what the alleged victim said as "medical history" and the nurse's opinion that sexual abuse
has occurred after normal results of the physical examination for sexual assault of the alleged
child victim is not relevant and reliable under Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.
1991).
3. The opinion from the SANE nurse is not credible or reliable since such evidence
is "junk science". Credible evidence would dictate that sexual intercourse would leave indelible
signs of sexual activity such as stretching, scarring, and ruptured tissue of the vaginal and anal
area. Since the physical examination of the alleged child victim shows no evidence of sexual
assault, to allow a witness that it is her opinion that sexual abuse has occurred must necessarily
rely solely upon the medical history of sexual abuse having occurred. Such evidence is hearsay
and a denial of the Defendant's right to cross-examine and confront the witness since there was
no contemporaneous cross-examination at the time the medical history was taken.
4. Since the opinion by the nurse is based on the hearsay statements of the alleged
victim taken as medical history for trial purposes, and therefore testimonial under Crawford v.
Washington, 124 S.Ct. 1354, 541 U.S. 36 (2004), the Defendant's right to confront and cross-
examine the witnesses against him under the Sixth Amendment of the U.S. Constitution and
Article I, Section 10 Texas Constitution is violated.
5. As an attempt to offer the evidence under an exception to the hearsay rule for
medical diagnosis and treatment is analogous to the business records exception when used for the
production of evidence at trial.
"Documents kept in the regular course of business may ordinarily be admitted at trial
despite their hearsay status. Fed. R. Evid. 803(6). But that is not the case if the regularly
conducted business activity is the production o[evidence [or use at trial."
The SANE nurse is part of the prosecution/law enforcement team whose sole purpose is to
obtain evidence of a testimonial nature to be used at trial.
6. In this case the hearsay exception as medical records is for the sole purpose of
production of evidence for use at trial and is therefore not admissible.
7. Here the purpose of the creation of the records and alleged medical testimony is
solely for trial purposes.
"The Sixth Amendment of the United States Constitution, made applicable to the States via the
Fourteenth Amendment, provides that in all criminal prosecutions, the accused shall enjoy the
right to be confronted with the witnesses against him. In Crawford v. Washington, the United
States Supreme Court held that the Sixth Amendment guarantees a defendant's right to confront
those who bear testimony against him. "
WHEREFORE, PREMISES CONSIDERED, RlCHARD BROWN prays that the
Court grant this motion as requested.
Respectfully submitted,
George B. Mackey
101 Summit Avenue, Suite 318
Fort Worth, Tx 76102
Tel: (817) 336-1008
Fax: (817) 336-5437
By:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
GEORGE B. MACKEY
State Bar No. 12779500
Attorney for RlCHARD BROWN
CERTIFICATE OF SERVICE
This is to certify that on , 2012, a true and correct
copy of the above and foregoing document was served on the District Attorney's Office, Tarrant
County, Texas, by hand delivery.
GEORGE B. MACKEY
ORDER FOR A SETTING
On , 2012, the Defendant filed a Motion to Exclude SANE
. Nurse Opinion of Sexual Abuse. The Court finds that the party is entitled to a hearing on this
matter, and it is THEREFORE ORDERED that a hearing on this motion is set for
__________________________,2012,m _____
Signed on ________________________, 2012.
JUDGE PRESIDING
NO. 1250248
THE STATE OF TEXAS § IN CRIMINAL DISTRICT COURT
§
vs. § NUMBER THREE OF
§
RICHARD BROWN § TARRANTCOUNTY,TEXAS
ORDER
On ---------------------- , 2012, came on to be considered RICHARD
BROWN's Motion To Exclude SANE Nurse Testimony, and said motion is hereby
(Granted) (Denied)
JUDGE PRESIDING
. FJLED .i
TARRANT COUNTY
. NO. 1250248D
. 201~ JUN 20 PH 12: 59
STATE § IN THE CRIMINAL DISTRICT
THOMAS A. WILDER §
v. DISTRICT CLERK § COURT NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
STATE'S REPLY TO DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL
COMES NOW, the State of Texas, by and through the Criminal District Attorney of
Tarrant County, Texas, makes this repiy to tne uefendant's request for appointment of counsel
for a post-conviction DNA testing, and in support shows the following:
I. STATEMENT OF THE CASE
The defendant, RICHARD BROWN ("Defendant"), pled guilty, pursuant to a plea
agreement, to the second degree felony offense of indecency with a child by contact on June 20,
2012. See\A.ttachment A: Judgment, No. 1250248D. In accordance with the plea agreement, the
trial court sentenced Defendant to eleven years confinement in the Texas Department of
Criminal Justice - Institutional Division. See Attachment A.
Defendant did not appeal his conviction. See Criminal Docket Sheet, No. 1250248D.
II. THERE IS NO EVIDENCE TO BE TESTED
Pursuant to art. 64.02 of the Texas Code of Criminal Procedure, the State denies that
evidence exists that might .contain biological material. See Attachment B: Stimpson Affidavit;
Attachment C: Arthurs Affidavit. The only evidence collected was Defendant's buccal swab.
See Attachment C, p~ 3.
-\
'
r-__.. ...1111111'
......
III. BECAUSE THERE IS NO EVIDENCE TO BE TESTED, THERE IS NO NEED
FOR APPOINTMENT OF COUNSEL.
Defendant filed his request for appointment of counsel on July 16, 2013. 1 Counsel is
only required to be appointed "if the person informs the court that the person wishes to submit a
motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the
court determines that the person is indigent." Tex. Code Crim. Proc. Ann. art. 64.01(c).
There is no need to appoint Defendant counsel because there is no evidence, other than
Defendant's own buccal swab, to test. See Attachment B; Attachment C. There are no
reasonable grounds for a motion to be filed.
IV. CONCLUSION AND PRAYER
Because there is no evidence to test for DNA, there are no reasonable grounds for a
motion for DNA testing. Defendant's request for appointment of counsel should be DENIED.
WHEREFORE, PREMISES CONSIDERED, the State prays the Court DENY
Defendant's request for appointment of counsel.
Respectfully submitted,
JOE SHANNON, JR.
Criminal District Attorney
Tarrant County, Texas
~~-----~
Andrea Jacobs
Assistant District Attorney
State Bar No. 24037596
401 West Belknap
Fort Worth, TX 76196-02.01
Phone: 817/884-1687
Facsimile: 817/884-1672
1
The State received Defendant's request for counsel on May 23, 2014.
2
3
CERTIFICATE OF SERVICE
A true copy of the above reply has been mailed to the defendant, Mr. Richard Brown,
TDCJ-ID# 01794390, Lynaugh Unit, 1098 S. Highway 2037, Fort Stockton, Texas 79735 on the
20th day of June, 2014.
Andrea Jacobs
3
,,
-7···--·-··-
AFFIDAVIT
Before me, the undersigned authority, personally appeared Thomas A.
Stimpson, who being by me duly sworn, deposed as follows:
. My name is Thomas A. Stimpson, I am of sound mind, capable of making
this affidavit, and am personally acquainted with the facts herein stated. I
am the property/evidence custodian for . Fort Worth Police Department·
Forensic Crime L~_Q. I have thoroughly searched for any property or
evidence relating to our Offense Report No. 11-072200- Aggravated Sexual
Assault of a Child - Defendant: Brown, Richard, which might contain
biological evidence and have found the following stated facts to be true and
correct:
Our records indicate that the Fort Worth Police Department Forensic Crime
Lab was never in possession of any evidence relating to the above
case/cause number.
Further affiant sayeth llaught. ~-----
Affiant
SWORN TO AND SUBSCRIBED before me on this the \q-\:i.day
of~ ,2014. ~
My commission expires: 8-19-2014
- 1-
.!
AFFIDAVIT
Before me, the undersigned authority, personally appeared--'----
BRUCE ARTHURS, who being by me duly sworn, deposed as
follows:
. My name is BRUCE ARTHURS , I am of sound mind, capable
of making this affidavit, and am personally acquainted with the facts herein
stated. I am the property/evidence custodian for Fort. Worth Police
Department Property Room. I have thoroughly searched for any property or
evidence relating to our Offense Report No. 11-072200 - Aggravated Sexual
Assault of a Child - Defendant: Brown, Richard, which might contain
biological evidence and have found the following Stated facts to be true and
correct:
All evidence relating to the above cas~ number was destroyed
on ____________ ~~· ...
- - Documentation of evidence destruction attached.
-~
Documentation of evidence destruction is not available.
Our records indicate that our agency .was never in possession of
any evidence relating to the above case/cause number.
X Evidence or property exists relative to the above case number
·..
that might contain biological evidence. An evidence.. list is attached;
-I -
c
. .. .. . .
~ .. ....; ·... _, ....
Our records indicate that our agency is m possessiOn of
property or evidence relative to the above case/cause number; however, it
cannot be located.
Our records indicate all evidence relating to the above
case/cause number was released to:
------------------------------
on ________________
Further affiant sayeth naught.
Affiant
SWORN TO AND SUBSCRIBED before me on this the 27~ay
of tna.y. , 201d
Pubiic, State of Texas
J. P. POLLARD
Notary Public
STATE OF TEXAS
My Comm. Exp. Deo. 22, 2015
My commission expires: /2 ~22-16
-2-
.
'
CoPY
j(J
0 Homicide Dsoo 0 Sexual Assault Q Fraud~Other·:~;c·~-3
Property
C"0 Evidenc~ 0 Recovered GJ Pending Seizure CJ Personal
Offense/Incident
- --- 1
Report# I Supplement: Offense Type: Location:
'------~
I
110072200/0002 Agg. Sex. Ass/Child '
Reported Stolen on Report#: ~ency: FWPD
Sul:im itted By Officer: · Unit: Date/Time:
~ 18 77 - EZELLE,B CACU 07/26/201111:29
---
'
.,.,---_ Person Summary
-~vi ~ Name ~ ~ace Sex 008
v sus I BROWN,ROBERT .5) ' 8 M
"----- ~ .-. ·. ·.·. ~~~ .i~--"· ·~':jf~m~s~.§!-!.~!!1!1~!~ . ,:~"'~;,_,;,/},!~:.~.: ._;,.....•... ;"'·. .... ·~. ' .·
• ., . ... ."\!!f: ,'· '· .•. :: ·•-:-~···~ ..... ; ,. ~··. ·-·· •
Item# lnvl Value Brand Desc./ Model (ARTICLf:S) Serial# Location
1 EVD Buccai taken from Richard_Brown, suspect.-~
ProperJY Room Instructions/Comments About' Evidence
i S-uspect's correct name is Richard Brown, a tiiack male date of birth 12.:os-6ci}
Stamp
,.
•.
Property Room
.. ·.
Receilied By (Name/IDNO): Date/Time:
Tag#: 110009211 IOffense #: 11 0072200
··~
...
1
CHAIR
I s ~·
EXECUTIVE DIRECTOR & GENERAL COUNSEL
JOAL CANNON SHERIDAN CHRISTINE E. MCKEEMAN
VICE CHAIR
DEPUTY DIRECTOR/COUNSEL
MARVIN W. JONES
GAYLE RILEY VICKERS
MEMBERS EXECUTIVE ASSISTANT
ROBERT A. BLACK JACKIE L. TRUITT
DAVIDA. CHAUMETTE THE BOARD OF DISCIPLINARY APPEALS
JEANNE C. "CEZY" COLLINS
JACK R. CREWS APPOINTED BY THE SUPREME COURT OF TEXAS
RAMON L. ECHEVARRIA II
GARY R. GURWITZ
ROLAND K. JOHNSON
DAVID N. KITNER
KATHY]. OWEN November 20, 2014
GEORGE A. TAYLOR
Richard Brown
#1794390, Lynaugh Unit
1098 S. Hwy. 2037
Fort Stockton, TX 79735 -.
RL Disposition of Appeal Notice
Richard Brown v. George B. MacKey
20i40SS59; BOLJA case No. 55175
Dear iv'ir. Brown:
On November 20, 2014, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas considered your
appeal from the dismissal of the above grievance by the Office of the Chief Disciplinary Counsel of the State Bar of Texas.
After reviewing the grievance as filed with the State Bar Chief Disciplinary Counsel's office and no other information, the
Board grants the appeal, finding that the grievance alleges a poss.ible violation of the following Texas Disciplinary Rules of
Professional Conduct:
Rules(s) 1.03; 1.14; 1.15
The Board of Disciplinary Appeals will now return the case to the Office of the Chief Disciplinary Counsel for
investigation and a determination whether there is just cause to believe that the attorney has committed professional
misconduct. The Office of the Chief Disciplinary Counsel will notify both parties of each step of the process, including
asking the attorney to respond to the complaint. For information concerning the handling of the case from this point
forward, please contact the regional Office of the Chief Disciplinary Counsel in charge of your case.
Information concerning the discipline~ry system, the Texas Disciplinary Rules of Professional Conduct, and the Texas
Rules of Disciplinary Procedure are available at www.texasbar.com. The Board's Internal Procedural Rules are available at
www.txboda.org.
Very truly yours,
Christine E. McKeeman
Executive Director & General Counsel
CEM/jt
cc: George B. MacKey
Laura Popps
State Bar of Texas
PO Box 13287
Austin, TX 78711
{512) 427-1350
{877) 953-5535 toll free
POST OFFICE BOX 12426 AUSTIN, TEXAS 78711 TEL: (512) 427-1578 FAX: (512) 427-4130 WWW.TXBODA.ORG
··,
':lAME RICHARD BROWN OFFENSE SEXUAL ASLT CHILD (AGG)
ADDRESS 4012 EASTOVER ST DATE 7/8/2011 Habitual
FORT WORTH TX 76119 J.P. ANN COLEMAN PSEUDONYM
RACE B SEX M AGE 50 DOB 12/8/1960
CASE NO. 1250248 DATE FILED .8112/2011 AGENCY Fort Worth PD
'
CID NO. 0383978 OFFENSE NO. 11-072200
COURT Criminal District Court No. 3
INDICTMENT NO. 1250248
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURORS OF TARRANT COUNTY, TEXAS,
duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in Tarrant County, in the
State of Texas, upon their oaths do present in and to the
of the said County that RICHARD BROWN, herdnafter called Defendant, in the County of Tarrant and State
aforesaid, on or about the 8th day of July 2011, did
......-... --·-·-----
,
fHEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE ANUS OF ANN COLEMAN (A
PSEUDONYM),_A CHILD YOUNGER THAN 14 YEARS OF AGE, TO CONTACT THE PENIS OF THE
DEFENDANT, . :
COUNT TWO: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8Jl-I_J2A.Y OF JULY,
2011, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE ANUS OF ANN
COLEMAN (A PSEUDONYM), A CHILD YOUNGER THAN 14 YEARS OFAGE,TO CONTACT THE
PENIS OF THE DEFENDANT, .
COUNT THREE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE g::[-I=J~Y OF JULY,
2011, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE ANUS OF ANN
COLEMAN (A PSEUDONYM), A CHILD YOUNGER THAN 14 YEARS OF AGE, TO CONTACT THE
PENIS OF THE DEFENDANT,
. COUNT FOUR: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY OF JULY,
2011, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE AN US OF ANN /
COLEMAN (A PSEUDONYM), A CHILD YOUNGER THAN 14 YEARS OF AGE, TO CONTACT THE
PENIS OF THE DEFENDANT,
COUNT FIVE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8IH DAY OF JULY,
2011, DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE MOUTH OF ANN
COLEMAN (A PSEUDONYM), A CHILD YOUNGER THAN 14 YEARS OF AGE, TO CONTACT THE
>ENIS OF THE DEFENDANT, '
COUNT SIX: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN
THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY OF JULY, 2011,
DID THEN AND THERE INTENTIONALLY OR KNOWINGLY CAUSE THE MOUTlfOF'-A.N-N..:COLEMAN
(A PSEUDONYM), A CHILD YOUNGER THAN 14 YEARS OF AGE, TO CONTACT THE PENIS OF THE
DEFENDANT,
1 ....:..,.
'JAME RICHARD BROWN
CASE NO. 1250248
PAGE 2 of 3
COUNT SEVEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY OF JULY,
2011, THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE
GENITALS OF ANN COLEMAN PSEUDONYM, A CHILD YOUNGER THAN 17 YEARS,
COUNT EIGHT: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFTARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY OF JULY,
2011, THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE
GENITALS OF ANN COLEMAN PSEUDONYM, A CHILD YOUNGER THAN 17 YEARS,
COUNT NINE: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT
IN THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY OF JULY,
2011, THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE
SEXUAL DESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE
GENITALS OF ANN COLEMAN PSEUDONYM, A CHILD YOUNGER THAN 17 YEARS,
COUNT TEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN
THE COUNTY OFT ARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY OF JULY, 2011,
THEN AND THERE INTENTIONALLY, WITH THE INTENT TO AROUSE OR GRATIFY THE SEXUAL
';)ESIRE OF SAID DEFENDANT, ENGAGE IN SEXUAL CONTACT BY TOUCHING THE GENITALS OF
· ANN COLEMAN PSEUDONYM, A CHILD YOUNGER THAN 17 YEARS,
COUNT ELEVEN: AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE
DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 8TH DAY
OF JULY, 2011, THEN AND THERE INTENTIONALLY EXPOSE HIS PENIS TO ANN COLEMAN
PSEUDONYM, A CHILD YOUNGER THAN 17 YEARS, KNOWING SAID CHILD WAS PRESENT, WITH
THE INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF SAID DEFENDANT,
HABITUAL OFFENDER NOTICE: AND IT IS FURTHER PRESENTED TO SAID COURT THAT PRIOR TO
THE COMMISSION OF THE OFFENSE OR OFFENSES SET OUT ABOVE, THE DEFENDANT WAS
FINALLY CONVICTED OF THE FELONY OFFENSE OF ROBBERY BY .XMRENI'S, IN THE 371ST
DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0800070A, ON THE 26TH DAY
OF NOVEMBER, 211Ql AND, THAT PRIOR TO THE COMMISSION OF THE OFFENSE OR OFFENSES
FOR WHICH THE DEFENDANT WAS CONVICTED AS SET OUT ABOVE, THE DEFENDANT WAS
FINALLY CONVICTED OF THE FELONY OFFENSE OF BURGI ARY OF A MA-BIT ATION, IN THE 297TH
DISTRICT COURT OF TARRANT COUNTY, TEXAS, IN CAUSE NUMBER 0744694D, ON THE 25TH DAY
OF FEBRUARY, 2000,
r~- 1'"'
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!
ll IAME RICHARD BROWN
1
CASE NO. 1250248
PAGE 3 of 3
I
)
Filed (Clerk's use only)
"'
AGAINST THE PEACE AND DIGNITY OF THE STATE.
Criminal District Attorney Foreman of the Grand Jury
Tarrant County, Texas
Tl\Tr'ITrT~Ift=l,.TT f"\Dlr!Tl\1 AT
F~\LE'D"·
TARRAHT COUNTY
·· · · NO. 1250248D
20\~ JUN 20· PM: \t·OO
STATE . § IN TliE CRIMINAL DISTRICT
THOMAS A. W\LOER §
V. 0\STR\CT CLERK ·§ COURT NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
STATE'S PROPOSED MEMORANDUM, FINDINGS OF FACT AND
CONCLUSIONS OF LAW
The State proposes the follo:wing :tyfemQrandum, Findings of Fact .and
Conclusions of Law regarding Defendanf~ Motion for Appointment of Counsel.
MEMORANDUM
The defendant, RICHARD BROWN ("Defendant"), requests appointment of
counsel for filing a motion for DNA testing. See Motion for Appointment of Counsel
("Motion"), p. 1.
In light of the evidence presented, the Court should consider the following
proposed findings of fact and conclusions of law.
FINDINGS OF FACT
General Facts
1. Defendant pled guilty, pursuant-to a plea agree~ent, to the second degree felony ·
offense of indecency. with a child by contact on June 20, 2012. See State's Reply,
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· ·-2. In accordance with the plea ·agreement, the trial court sentenced Defendant to
eleven years confinement in. the Texas Department of Criminal -Justice -
Institutional Division. See Attachment A.
'·
3. Defendant did not appeal his conviction: See Criminal Docket Sheet, No.
1250248D.
No Relevant Evidence Exists
4. Pursuant to art. 64.02 of the Texas Code of Criminal procedure, the State denies
that evidence exists that might contain relevant biological material. See State's '
·t
Reply, Attachment B: Stimpson Affidavit; State's Reply, Attachment C: Arthurs
Affidavit; Tex. Code Crim. Proc. art. 64.02(2)(B).
5. The only evidence that exists is Defendant's buccal swab which contains.
biological material but is irrelevant to this offense ..
6. There is no evidence containing relevant biological material to test in this case,.
Appointment of Counsel
7. Because there is no relevant evidence to test, there are no reasonable grounds for
a motion for DNA testing.
CONCLUSIONS OF LAW
Appointment of Counsel
Defendant filed his request for appointment of counsel on July 16, 2103. See
Request, p. 1.
2. Counsel is only required to be appointed "if the person informs the court that the
person wishes to submit a motion under this chapter, the court finds reasonable
-grounds for a motion to be filed, and the court determines that the person is
indigent." Tex. Code Crim. Proc. Ann. art. 64.01(c).
3. Defendant's buccal swab is not evidence that might contain relevant biological
evidence to this offense.
4. Because no evidence exists that might contain relevant biological evidence, there
are no reasonable grounds for a motion to be filed.
5. No appointment of counsel is required. See Tex. Code Crim. Proc. Ann. art.
64.01(c).
6. Defendant's Motion for Appointment of Counsel is DENIED.
2
WHEREFORE, the State prays that this Court adopt these Proposed Findings of
Fact a.Pd Conclusions of Law and DENY the Defendant's Request for DNA testing.
Respectfully submitted,
JOE SHANNON, JR.
Criminal District Attorney
Tarrant County
r-----..
Andrea Jacobs
Assistant District Attorney
State Bar No. 24037596
40 1 West Belknap
Fort Worth, TX 76196-0201
Phone: 817/884-1687
Facsimile: 817/884-1672
CERTIFICATE OF SERVICE
A true copy of the above has been mailed to Defendant, Mr. Richard Brown,
TDCJ-ID# 01794390, Lynaugh Unit, 1098 S. Highway 2037, Fort Stockton, Texas 79735
on or before the 20th day of June, 2014.
Andrea Jacobs
3
NO. 1250248D
STATE § I~ THE CRIMINAL DISTRICT
§
v. § COURT NUMBER THREE OF
§
RICHARD BROWN § TARRANT COUNTY, TEXAS
ORDER
The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law
and DENIES the Request for Appointment of Counsel ofRICHARD BROWN, because there are
no reasonable grounds for a motion for DNA testing as no evidence containing relevant
biological material exists in a condition making DNA testing possible. See Tex. Code Crim.
Proc. Ann. arts. 64.01(c); 64.03(a)(1)(A)(West 2011). The Court further orders and directs:
The Clerk of this Court to furnish a copy of this Order to Defendant, Mr. Richard Brown,
TDCJ-ID# 01794390, Lynaugh Unit, 1098 S. Highway 2037, Fort Stockton, Texas 79735 (or to
Defendant's most recent address), and to the appellate section of the District Attorney's Office.
SIGNED AND ENTERED this _ _ day of _ _ _ _ _ _ _ _ , 2014.
JUDGE PRESIDING
"
I
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,,..... -...
,.•
·C.JCH.t:~ _r r {S,)
·'
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RICHARJ:5 BROWN, §
Petitioner, §
§
V. § Civil Action No.4: 14-CV-839-0
§
WILLIAM STEPHENS, Director, 1 §
Texas Department of Criminal Justice, §
Correctional Institutions Division, §
· Respondent. §
91~J!J}:R ~~~l'1l1~IlNG~PRGCEED!N'; 1N ~i:HE'.DI~TRICTCOTJR::;~,-.,
· · " and · · ·
ORDER TO SHOW CAUSE, NOTICE, AND INSTRUCTIONS TO PARTIES
( ) A filing fee in the amount of $5.00 has been tendered.
(X) Petitioner's Application to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915 is GRANTED.
It is therefore ORDERED that the parties shall comply with the followip.g directives and the clerk of Court
shall takethe action indicated below: :.
You will take notice that a "Petition For a Writ of Habeas Corpus by~~·Per~·an in State Custody," numbered
~-- and styled as above, has been filed in this Court pursuant to the provisions of28 u.·s.c. §§ 2241, et seq. Pleadings
and briefs are required or permitted as follows:
RESPONDENT'S ANSWER. Pursuant to Rule 4 of the Rules Governing Section2254 Cases in the United
States District Courts, Respondent is directed to file an answer to this petition within 60 days of the date of this
order, answering in _accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District
Courts. If Respondent believes the petition is wholly barred by a failure to exhaust state remedies, a procedural bar,
!!.9_J?..:I~!I9..'!~!jvit_y,..,g.Uh~:?.t?t.!!lt~_9.f limj_tations, he. ~11~y_ fi~.i!__orel_ip1inary ans\y~..r_~ss~_rting ai_!Y_such baL_Pii_9r to
answeri'ii.g on 'tlie :rntJi'ts:' ;, " ; ' . . . . . . . . .. ·~ - .. -- -~c . . :- • ' .- - -
REPLY. Pursuant to Rule 5( e) of the Rules Governing Section 2254 Cases, Petitioner may file a reply
within 30 days from the date of service of Respondent's answer, motion, or other pleading.
BRIEFS. Briefs, as required or permitted by the provisions of this paragraph, should comply with the 25-
~ limitation under Local Rule 7.2(c) and should be submitted on letter size paper and double spaced. Each
argument with supporting citations advanced in the brief should clearly specify the specific ground of the motion
or numbered paragraph of the pleading it seeks to support or oppose. B1iefs are required or permitted as follows:
1. Respondent's brief. Respondent may file such brief as he may deem appropriate.
2. Reply brief. A reply brief is not required. However, in any case in which Respondent has filed a
brief, a reply brief limited to 10 pages may be filed by Petitioner, should he wish to do so, within a period
1
Petitioner misspells RespoQdent Stephens last name as "Stevenson." The clerk of Court is directed to docket and change the last
name of Respondent to reflect the correct spelling. .. .. :.
of 30 days following service of Respondent's brief. Each paragraph of such reply brief must specify the
precise paragraph or part of Respondent's brief to which reply is being made, and must be limited to a reply
to Respondent's argument. Under no circumstances will any statement or argument s777et forth in an
original or reply brief be considered as a part of the pleadings so as to advance new grounds for relief or to
supplement any grounds or supporting facts set out in the petition.
In every case a copy of the petition, pending motions, and any orders shall be served on the Attorney
General, counsel for the State of Texas, by electronic means. 2 N.D. Tex. L. Civ. R. 5.l(e). In every case a copy of
any brief, pleading, motion or order shall be mailed to Petitioner, if pro se, or served electronically on counsel for
Petitioner. !d.
SO ORDERED on this 3rd day of December, 2014.
~a~
eehcoi'J
UNITED STATES DISTRICT JUDGE
2
Based upon communication with the Texas Attorney General's Office, this Court will not serve copies of the petition,
attachments, pending motions, and orders upon Director Stephens. Instead, copies of the petition, attachments, pending motions and orders
will be served electronically upon the Texas Attorney General, counsel for the Director, and will be directed to the attention of Elizabeth
Goettert, Assistant Attorney General, Postconviction Litigation Division, P. 0. Box 12548, Austin, TX 7871 i-2548. See Fed. R. Civ. P.
5(b )(2)(E).
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Subject:Activity in Case 4:14-cv-00839-0 Brown v. Stephens, Director TDCJ-CID
Judgment
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U.S. District Court
Northern District of Texas
'
Notice of Electronic Filing
The following transaction was entered on 7/29/2015 9:35AM CDT and filed
on 7/29/2015
Case Name: Brown v. Stephens, Director TDCJ-CID
Case Number: 4:14-cv-00839-0
https://ecf.txnd.uscourts.gov/cgi-bin/DktRpt.pl?252696
Filer:
WARNING: CASE CLOSED on 07/29/2015
Document Number: 19
Copy the URL address from the line below into the location bar of your Web
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Docket Text:
FINAL JUDGMENT: In accordance with its opinion and order signed this day,
the Court DISMISSES the petition of Richard Brown pursuant to 28 U.S.C. ?
2254 in the above-captioned action as time-barred. (Ordered by Judge
Reed C O'Connor on 7/29/2015) (ewd)
4:14-cv-00839-0 Notice has been electronically mailed to:
Susan San Miguel susan.sanmiguel®oag.state.tx.us, laura.haney®oag.state.tx.us
- -~"'
:Y
/
'i:)
IN THE UNITED STATES DISTRICT COURT
·FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RICHARD BROWN, §
Petitioner, §
§
VS. § Civil Action No. 4:14-CV-839-0
§
WILLIAM STEPHENS, Director, §
Texas Department of Criminal Justice, §
Correctional Institutions Division, §
Respondent. §
FINAL JUDGMENT
In accordance with its opinion and order signed this day, the Court DISMISSES the petition
of Richard Brown pursuant to 28 U.S.C. § 2254 in the above-captioned action as time-barred.
SO ORDERED on this 28th day of July, 2015.
~a~
eeriicofi~J
UNITED STATES DISTRICT JUDGE
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RICHARD BROWN, §
§
Petitioner, §
§
v. § Civil Action No.4: 14-CV-839-0
§
WILLIAM STEPHENS, Director, §
Texas Department of Criminal Justice, §
. Correctional Institutions Division, §
§
Respondent. §
OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by Petitioner, Richard Brown, a state prisoner confined in the Correctional Institutions Division of
the Texas Department of Criminal Justice (TDCJ), against William Stephens, Director of TDCJ,
Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded
\
that the petition should be dismissed as time-barred.
I. BACKGROUND
In September 2011 Petitioner was charged in a multi-count indictment with aggravated sexual
assault of a child and indecency v:ith a child by contact·in the Criminal District Court Number Three
of Tarrant County, Texas. Admin. R., SH2 93-94, ECF No. 12-2. The indictment also included a
habitual-offender notice alleging two prior Tarrant County felony convictions in cause numbers
0800070A and 0744694D. ld. On June 20, 2012, Petitioner's trial commenced, however, after a
jury had been selected and sworn, Petitioner decided to waive his right to a jury trial and plead guilty
to one count of indecency with a child. In exchange, the state agreed to waive the remaining counts
' ••• • 1 - - - - ·
and t~e habitual count, s.o .long as Petitioner pleaded true to the prior felony convictionjn cause
number 0800070A, and recommend an 11-year sentence. !d. at 96. Petitioner signed the written
admonishments concerning his rights, waivers and the consequences of his guilty plea, including the
fact that he faced the range of imprisonment for a "second degree felony enhanced" of 5 to 99 years,
and the trial court sentenced him according to the plea agreement. !d. 96-106. Having waived his
right to appeal, Petitioner did not directly appeal his conviction or sentence. Pet. 3, ECF No. 1. On
May 14, 2014, Petitioner filed a state habeas application challenging his conviction and sentence,
which was denied by the Texas Court of Criminal Appeals without written order on the findings of
the trial court.' Admin. R., SH1, ECF No. 12-1. This federal petition for habeas relief challenging
his conviction and sentence was filed on October 10, 2014. 2 Pet. 10, ECF No. 1.
Petitioner raises six grounds for relief, wherein he claims his plea was coerced and he is
actually innocent ofthe offense (grounds one and three); he received ineffective assistance of trial
counsel (ground three); the indictment was defective (ground four); there is no evidence to support
his conviction (ground five); and the trial court abused its discretion by accepting his plea agreement
when there was no evidence ofhis guilt (ground six). Pet. at 6-7, ECF No.1; Pet'r's Mem. 4-24,
ECF No. 2. Respondent asserts the petition is time-barred under the federal statute of limitations.
II. DISCUSSION
Title 28 U.S.C. § 2244(d) imposes a one-year statute ofliniitations on federal petitions for
writ of habeas corpus filed by state prisoners. Section 2244(d) provides:
'Petitioner's state habeas application is deemed filed when placed in the prison mailing system. Richards v.
Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013). The application does not state the date Petitioner placed the
document in the prison mailing system, however the "Inmate's Declaration" was signed by Petitioner on October 10,
20 14; thus, the Court deems the application filed on that date.
2
Likewise, a federal habeas petition filed by an inmate is deemed filed when the petition is placed in the
prison mail system for mailing. Spotville v. Cain, 149 F.3d 3 74, 377 (5th Cir. 1998).
2
( 1) A 1-year period of limitations shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to ~he judgment of a State court. The
limitations period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by
the Supreme Comt and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-
convicti9n or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitations under this
subsection.
7~ 28 U.S.C. § 2244(d)(l)-(2).
~·
In an apparent attempt to trigger subsection (B) or (D), Petitioner asserts that his efforts to
seek postconviction relief were "impeded" by the state's failure to provide him with copies of the
state court records and that he obtained "new evidence"-i.e., a copy of the trial court's judgment of
conviction-after his state habeas proceeding reflecting that he was convicted of indecency with a
child, which is a third-degree felony carrying a range of imprisonment of 2 to 10 years. Pet'r's
file:: the stat~:-_c.o.urtrecor4:in a- habeas,corptls .proceedingmor;doe'~~~fi?risoner~lfav·e"'aconstitutional."
3
right to free copies of records or transcripts for the purpose of preparing a collateral attack on his
conviction or sentence. Furthermore, the trial court's judgment is not "new evidence." Petitioner
pleaded true to a prior felony conviction in cause number 0800070A as part of the plea agreement.
With one prior felony conviction, petitioner became classified as a repeat offender, and the range of
punishment was increased from that applicable for a third-degree felony to punishment applicable
for a second-degree felony. See TEX. PENAL CODE ANN.§ _12;42(a) (West Supp. 2014). As a repeat
offender with one prior felony, the range of imprisonment Petitioner then faced was 2 to 20 years.
ld. § 12.42(a) (3). Petitioner only received 11 years' confinement upon his guilty plea, which was
within the statutory guidelines. Contrary to Petitioner's contention, the sentence did not exceed the
maximum punishment allowed· by law.
Because Petitioner fails to invoke subsections (B) or (D) or to raise a claim of newly
recognized rights under subsection (C), the general provision under subsection (A) applies to his
case. Under subsection (A), the limitations period began to run on the date on which the judgment
of conviction became final by the expiration of the time for seeking direct review. For purposes of
·•;:~~--·
this provision, the judgment of conviction became final and the one-year limitations period began
to run upon expiration of the time Petitioner had for filing a timely notice of appeal on July 20,2012,
and closed one year later on Monday, July 22,2013, absent any applicable tolling. 3 TEX. R. APP. P.
26.2; Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998).
t•- Petitioner's state habeas application, filed on May 14, 2014, after limitations had already
expired, did not operate to toll the limitations period under the statutory provision. 28 U.S.C. §
2244(d)(2); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). Nor has Petitioner alleged or
3
July 20,2013, was a Saturday.
4
demonstrated rare ,~nd exceptional circumstances that would justify tolling as a matter of equity.;
Equitable tolling is permitted only in rare and exceptional circumstances when an extraordinary
factor beyond the petitioner's control prevents him from filing in a timely manner or he can make
a convincing showing that he is actually innocent of the crime for which he was convicted.
McQuiggin v. Perkins, -U.S. - , 133 S. Ct. 1924, 1928 (2013) (referencing 28 U .S.C. §
2244(d)(1)); Holland v. Florida, 560 U.S. 631 , 649 (2010). Petitioner concedes that his petition is
untimely but urges that his untimeliness is due to his indigent and pro se status and difficulty
obtaining records and to his trial counsel's failure to respond to his request for certain documents.
Pet'r's Rebuttal 1-3, ECF No. 15; Pet'r's Mem. of Law, Ex. 6, ECF No. 2. It is well settled,
however, that a petitioner's prose status, indigence, lack of knowledge of the law, and difficulty
obtaining records, all common problems of inmates who are trying to pursue postconviction habeas
relief, do not warrant equitable tolling of the limitations period. Felder v. Johnson, 204 F.3d 168,
171-72 (5th Cir. 2000); Turner v. Johnson, 177 F .3d 390, 391 (5th Cir. 1999). Moreover,
Petitioner's claim that counsel did not respond to his request is conclusory, and, even if Petitioner
could show that counsel ignored his request, the letter is dated August 13,2014, well after the one-
year limitations period had already expired.
Finally, a petitioner attempting to overcome the expiration of the statute of limitations by
showing actual innocence is required to produce "new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence"-sufficient to
persuade the district court that "no juror, acting reason.ably, would have voted to find him guilty
beyond a reasonable doubt." McQuiggin, 133 S. Ct. at 1928 (quoting Schup v. Delo, 513 U.S. 298,
329 (1995)). Petitioner argues that, despite his guilty plea, he is actually innocent of the offense
5
because there is no evidence corroborating his plea. Although actual innocence, if proved, can
overcome the statute of limitations, Petitioner waived his claim by entering a voluntary and knowing
guilty plea to the offense. 4 McQuiggin, 133 S. Ct. at 1928. See also United States v. Vanchaik-
Molinar, 195 Fed. Appx. 262, 2006 WL 2474048, at* 1 (5th Cir. 2006) ("A voluntary guilty plea
waives all non-jurisdictional defects that occurred prior to the plea and precludes consideration of
a claim challenging the sufficiency of the evidence."). As a matter of federal constitutional law, a
voluntary and knowing guilty plea is sufficient evidence, standing alone, to support a conviction.
Smith v. McCotter, 786 F.2d 697, 702 (5th Cir. 1986).
In summary, Petitioner's federal petition was due on or before July 22,2013. Therefore, his
petition filed on February 18,2014, was filed beyond the limitations period and is untimely.
III. CONCLUSION
For the reasons discussed herein, the petition of petitioner for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 is DISMISSED as time-barred. Further, for the reasons discussed
herein, a certificate of appealability is DENIED. All motions not previously ruled upon are
DENIED.
SO ORDERED on this 28th day of July, 2015.
~a~
eeiico~)
UNITED STATES DISTRICT JUDGE
4
In Petitioner's state habeas application, the state court detennined that Petitioner's guilty plea was
knowingly, freely and voluntarily made. Admin. R., SH2 84, ECF No. 12-2. Absent clear and convincing evidence
in rebuttal, this Court must defer to the state court's findings in this regard. 28 U.S.C. § 2254(e)(l).
6
|
COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Haley
Argued at Chesapeake, Virginia
LAKEITHA D. BRICKHOUSE
MEMORANDUM OPINION* BY
v. Record No. 3128-06-1 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 18, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Office of the Appellate
Defender, on brief), for appellant.
Karen Misbach, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Lakeitha D. Brickhouse (appellant) was convicted in a bench trial of possession of
cocaine with the intent to distribute as a principal in second degree, in violation of Code
§ 18.2-248. On appeal, she contends the trial court erred in finding the evidence sufficient, as a
matter of law, to support her conviction. Finding no error, we affirm her conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
Here, finding appellant “knew [Wilkins and Brown] were using her house essentially as a
drug house” to store cocaine, the trial court convicted appellant of possession of cocaine with the
intent to distribute as a principal in the second degree.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
This appeal followed.
On appeal, appellant maintains the evidence was insufficient to support her conviction
because the facts did not prove she knew of the presence of the cocaine found in the air
conditioning vent inside her bedroom closet or that she exercised dominion and control over the
cocaine. Furthermore, she claims she committed no act “to encourage or assist or even permit
some person” to store the cocaine in her home. We disagree with appellant.
In reviewing the sufficiency of the evidence to support a conviction, “we determine
whether the evidence, viewed in the light most favorable to the prevailing party, the
Commonwealth, and the reasonable inferences fairly deducible from that evidence support each
and every element of the charged offense.” Haskins v. Commonwealth, 31 Va. App. 145,
149-50, 521 S.E.2d 777, 779 (1999). We will affirm the conviction “unless it is plainly wrong or
without evidence to support it.” Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d
899, 906 (2001).
“[P]ossession of a controlled substance may be actual or constructive.” McGee v.
Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (citing Archer v.
Commonwealth, 225 Va. 416, 418, 303 S.E.2d 863, 863 (1983)).
To support a conviction based upon constructive
possession, “the Commonwealth must point to evidence of acts,
statements, or conduct of the accused or other facts or
circumstances which tend to show that the defendant was aware of
both the presence and the character of the substance and that it was
subject to his dominion and control.”
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)).
To hold an accused accountable as a principal in the second degree, the Commonwealth
must prove the accused was “present, aiding and abetting, by helping some way in the
-2-
commission of the crime.” Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465,
468 (1986).
“Mere presence when a crime is committed is, of course,
not sufficient to render one guilty as aider or abettor. There must
be something to show that the person present and so charged, in
some way procured, or incited, or encouraged, the act done by the
actual perpetrator. But whether a person does in fact aid or abet
another in the commission of a crime is a question which may be
determined by circumstances as well as by direct evidence. . . .”
Pugliese v. Commownealth, 16 Va. App. 82, 93, 428 S.E.2d 16, 25 (1993) (quoting Foster v.
Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316 (1942)).
Viewed in the light most favorable to the Commonwealth, the circumstantial evidence
presented at trial proved that appellant resided in a home where drugs were packaged and stored
for distribution. Appellant’s bedroom contained forty-one grams of crack cocaine, consisting of
thirteen individually wrapped bags worth over $2,000, and personal papers identifying her and
Wilkins. Next to her bed, officers found drug-packaging materials. In the remaining rooms,
officers discovered a trash can and a vase, both containing drug-packaging materials, as well as
heroin stored in another bedroom. In plain view, officers found a digital scale containing
cocaine residue, a razor blade, and a person identified as a “user” in the bathroom. Additionally,
appellant had seen Wilkins with bags of cocaine at her house. Appellant also admitted to
Detective Smith that she knew why the officers were there, whom they were there for, and that
“she wasn’t the one doing it.”
Considering these circumstances, the trial court could properly infer that appellant was
more than a mere bystander of the crime because she actually provided her home as a venue for
the operation of a drug distribution scheme. Therefore, it also follows that appellant knew of,
and exercised dominion and control over, the cocaine stored in her bedroom air conditioning
vent. Accordingly, we find the evidence sufficient, as a matter of law, to support the finding
-3-
beyond a reasonable doubt that appellant aided and abetted in the commission of the crime, and
thus, participated in the possession of cocaine with the intent to distribute as a principal in the
second degree.
For these reasons, we affirm appellant’s conviction.
Affirmed.
-4-
|
NUMBER 13-06-00396-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICARDO J. GARCIA, Appellant,
v.
MIGUEL LONGORIA, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez
This is a temporary injunction case. See TEX . CIV. PRAC . & REM . CODE ANN . §
51.014(a)(4) (Vernon Supp. 2007) (allowing for an interlocutory appeal from a ruling on a
temporary injunction); TEX . R. APP. P. 28.1 (stating that such appeals are accelerated). By
two issues, appellant, Ricardo J. Garcia, asks this Court to declare a temporary injunction
order enjoining him from executing a judgment against appellee, Miguel Longoria, void
because the injunction was not supported by evidence and because it fails to comply with
rules 683 and 684 of the Texas Rules of Civil Procedure.1 See TEX . R. CIV. P. 683, 684.
We reverse the order, dissolve the temporary injunction, and remand.
In June 2006, appellee sought a temporary injunction.2 On June 15, 2006, the trial
court enjoined appellant from taking possession of appellee's "homestead" and from selling
or from taking any action to sell appellee's "personal property levied upon by the sheriff
pursuant to a writ of execution issued in this matter." The order reasoned that if these acts
were not restrained, Longoria would "suffer irreparable injury because [he would]
wrongfully lose ownership of his homestead." The order did not set the case for a trial on
the merits. The order did not fix the amount of the bond.
Texas Rule of Civil Procedure 683 states that "[e]very order granting a temporary
injunction shall include an order setting the cause for trial on the merits . . . ." TEX . R. CIV.
P. 683. The procedural requirements of rule 683 are mandatory, and an order granting a
temporary injunction that does not meet them is subject to being declared void and
dissolved. Qwest Commc'n Corp. v. AT&T Corp., 24 S.W.3d 334, 337 (Tex. 2000) (per
curiam) (citing InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641
(Tex. 1986) (per curiam) (explaining that rule 683's requirements are mandatory and are
to be strictly construed)). In addition, rule 684 provides that in the order granting a
1
Appellee has not filed a brief in this m atter..
2
Although the docum ent filed was titled "Application for Restraining Order," its substance was that of
a request for a tem porary injunction, and we will treat it as such. See State Bar of Tex. v. Heard, 603 S.W .2d
829, 833 (Tex. 1980) (orig. proceeding); see also T EX . R. C IV . P. 71 (explaining how to handle the m isnom er
of a pleading), 680 (setting out the rule for a tem porary restraining order), 681 (explaining form and scope of
an injunction).
2
temporary injunction, "the court shall fix the amount of security to be given by the
applicant." TEX . R. CIV . P. 684; see Ex parte Jordan, 787 S.W.2d 367, 368 (Tex. 1990)
(per curiam) (concluding that an order for temporary injunction was void where no bond
was required). Because the order did not set the cause for trial on the merits and did not
fix the amount of security required, we conclude that it is void. See City of Sherman v.
Eiras, 157 S.W.3d 931, 931 (Tex. App.–Dallas 2005, orig. proceeding) (ordering trial court
to enter order dissolving temporary injunction where order did not comply with rule 683).
Appellant's second issue is sustained.3
Having concluded that the temporary injunction order is void, we reverse the trial
court's order, dissolve the temporary injunction, and remand the cause for further
proceedings consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 31st day of July, 2008.
3
Because of our disposition of appellant's second issue, we need not address his first issue. See T EX .
R. A PP . P. 47.1.
3
|
100 F.Supp. 230 (1951)
UNITED STATES
v.
KLOCK et al.
Cr. No. 30845.
United States District Court N. D. New York.
September 27, 1951.
*231 Edmund Port, U. S. Atty. Northern District of New York, Syracuse, N. Y., (Robert J. Leamy Asst. U. S. Atty., Oneonta, N. Y., of counsel), for the United States.
Averbach & Bonney, Seneca Falls, N. Y. (Albert Averbach, Seneca Falls, N. Y., and William W. Barron, Washington, D. C., of counsel), for defendants.
*232 FOLEY, District Judge.
The defendant Titus by proper motion seeks to dismiss sixteen substantive counts and one conspiracy count, entitled Count XVII, contained in a single indictment found against him and two other defendants, Klock and Root. The challenge by defendant Titus alone to Counts I through XVI of the indictment, inclusive, is based upon three contentions: (1) that the court is without jurisdiction; (2) the indictment does not state facts sufficient to constitute an offense against the United States; (3) the indictment was not filed within three years next after the alleged offenses were committed. The attack against the conspiracy count, Count XVII, is generally similar. In three separate motions filed simultaneously, the defendant Titus also moves for a bill of particulars, discovery and inspection, and for relief from prejudicial joinder under the appropriate rules of the Federal Rules of Criminal Procedure, 18 U.S.C. It is evident that the motion for dismissal as to the separate counts of the indictment is the important one to resolve, but the discussion herein shall cover and is intended as a disposition of all the motions.
The sixteen counts of the indictment are similar in their accusations. Each count charges a wrongful and unlawful misapplication of the moneys, funds and credits of the Syracuse Trust Company by Klock, employed by the said bank as bookkeeper, with intent to injure and defraud said bank. The alleged method of misapplication by Klock is set forth similarly in each count in precise detail, and the payee, maker, date and amount of each check charged in the separate sixteen counts to have been drawn upon a stated account containing insufficient funds are set forth as part of the circumstances surrounding and relating to each claimed statutory violation. Each of these counts charge that the described checks were signed by Paul Titus as maker and drawn upon the account of Paul and/or Ann Titus in said bank. The dates of the incidents, alleged with sufficient particularity, run from January 1950 to March 1951 in these counts. Upon these direct charges of criminal responsibility on the part of Klock in his actions as a bank employee, a specific charge in each count is laid against the defendant Titus that in each separate instance he did unlawfully, wilfully and wrongfully and with intent to injure and defraud the bank, aid and abet Klock in his alleged wrongdoing. The criminal charge against Titus in these counts is solely and only aiding and abetting Klock. No more and no less. The violations of law, as is customary, are listed at the end of each count as violations of Section 656 and 2, Title 18 U.S.C.A.
The main contention of Titus grows from the revision of the United States criminal statutes in 1948 and is directed against the omission of certain language in the breaking down of the voluminous Section 592 of Title 12 U.S.C., 1940 Ed. and incorporating important parts of it in the new revised section 656, Title 18 U.S.C., C. 645, 62 Stat. 729, which became effective September 1, 1948. The material words not carried over into Section 656 by the revision, or to other related provisions recreated from Section 592, were specific in including therein "* * * every person who, with like intent, aids or abets any officer, director, agent, employee or receiver in any violation of this section shall be guilty of a misdemeanor * * *". Importance is attached to this omission in behalf of the defendant Titus because at the time of the legal existence of Section 592 there was the usual provision for aiding and abetting responsibility in Section 550, Title 18 U.S.C., the predecessor in part of Section 2, Title 18 U.S.C., the new general provision in such situations. It is argued that because the new section, 656, by its terms does not explain such omission, nor does such explanation exist in the Reviser's Note to such section, either as to the reason for the omission nor a reference to the provisions of aiding and abetting under Section 2 as covering the situation, then the conclusion is warranted that the Congress, and the Revisers in their important aid to the Congress, by this negative manner intended the startling consequence which would grant inviolability and immunity to persons sought to *233 be charged as an aider and abettor to this particular statutory violation. It is a tortuous road of reasoning and, in my judgment, a simple study of the necessity, background, spirit, purpose and function of the revision in 1948 of Title 18 discloses an intent exactly opposite to the contention made in this respect. This scattering and specious argument, it appears to me, is absolutely contrary to the intent of the Congress and the expressions of the revisers in effecting generally this important revision of existing law.
As stated recently in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394, 71 S.Ct. 745, 750, "It is the sponsors that we look to when the meaning of the statutory words is in doubt", then again in the dissenting opinion, Mr. Justice Frankfurter, 341 U.S. at pages 399, 400, 71 S.Ct. at page 753, same case, "It has never been questioned in this Court that committee reports, as well as statements by those in charge of a bill or of a report, are authorative elucidations of the scope of a measure." Oddly enough, an important sponsor of the revision of Title 18, William W. Barron, Chief Reviser, is counsel to the attorneys of record for the defendant Titus. A scrutiny of his statements, the notes of the revisers compiled under his supervision, and his writings, is necessary. It is unquestioned that he and his associates performed a monumental task in guiding this important revision and putting into intelligible, concise form the important statutory enactments relating to crimes and criminal procedure.
In his statement to the House Committee on Revision of the Laws, at a hearing held December 6, 1944, Mr. Barron, speaking as Chief Reviser, was asked by the Chairman as to whether or not the reviser's notes would set forth clearly the substantive changes in the law. It was the answer of Mr. Barron in this respect that, "Every substantive change, no matter how minor, is fully explained so that if you in your discretion see fit to make these notes part of your report, they will adequately serve to interpret every proposed change." Title 18 U.S.C., 1948 Ed., Cong.Serv. p. 2672.
As indicated previously, the Reviser's Note to Section 656, Title 18 U.S.C., makes not the scantiest reference to the purpose in the omission of the previous aiding and abetting language. The Reviser's Note to such section does state in its second paragraph that, "The revised section without changing in any way the meaning or substance of existing law, clarifies, condenses, and combines related provisions largely rewritten in matters of style." These plain, simple statements must mean what they say. It seems incongruous that the Congress and the revisers in assisting them in its studied research would work out such drastic change of policy as urged by the defendant herein in relation to criminal liability in such haphazard and inconsequential manner.
To me the omission is in direct accord with the purposes of simplicity, clarity and brevity mainly sought in the revision. In the same statement to the House Committee, Title 18, U.S.C., 1948 Ed., Cong. Serv. at page 2667, Mr. Barron said, "For example, by inserting the word `causes' in the definition of `principals' we found we could omit that word together with such expressions as `aids or abets' and `causes or procures' from many other sections." (Italics mine.) This statement was included verbatim in the Committee Report to the House of Representatives, H.R. 304, Title 18 U.S.C., 1948 Ed., Cong.Serv. page 2441. In my judgment, such statements are a full explanation for the deletion of the aiding and abetting words in the new Section 656.
In an appendix to an article by Mr. Barron on the "Construction of Statutory Revisions", 8 F.R.D. 439, at pages 446, 447, there are important authorities collated as to the approach of the courts in such construction. These authorities fit the situation herein very well and give overwhelming resistance to the position of the defendant in this particular phase of his argument.
The aiding and abetting provision in the law has long been with us. In United States v. Peoni, 2 Cir., 100 F.2d 401, Judge Learned Hand, in his eloquent manner, reviews the history of these enactments. *234 His definition in the Peoni case was adopted in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919, "In order to aid and abet another to commit a crime it is necessary that a defendant `in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.'"
Then, again recently in United States v. Chiarella, 2 Cir., 184 F.2d 903, Judge Hand referred to subdivision (b) of Section 2, Title 18 U.S.C., as "baffling language." However, there is no challenge whatsoever to the first sentence of Section 2, marked "(a)" except to say that this sentence has always been substantially the same.
It is my conclusion in this respect that the first sixteen counts are adequately based upon sufficient statutory foundation and meet the challenge of dismissal based upon lack of jurisdiction in the court and insufficient statement of facts to constitute an offense against the United States. The remaining objection that the indictment was not filed within three years after the alleged offenses were committed is clearly without merit inasmuch as these particular counts are based upon alleged happenings beginning in 1950.
The part of the motion addressed to the conspiracy count, Count XVII, is based mainly upon the reasoning in United States v. Zeuli, 2 Cir., 137 F.2d 845. That decision, of course, rests upon its own peculiar facts as disclosed upon the trial. It is interesting to note that much of the reasoning on the conspiracy issue was based upon difficulty in proof and not in the indictment. It does not seem conclusive in this present test of the conspiracy count herein. The decision of reversal in the Zeuli case was concluded mainly upon the question of proper venue. In the conspiracy count here it is charged that the three defendants named, Klock, Root, and Titus, unlawfully conspired and agreed for the unlawful purposes of misapplication, together with the making of false entries, to injure, defraud and deceive. By its broad and detailed charge of conspiracy, it charges agreement specifically, includes the activities of three persons, and adds the allegation of false entries to the misapplications charged in the substantive counts. It sufficiently avoids the exception that a conspiracy charge may not be added to the substantive charge where the agreement of two persons is necessary for the completion of the substantive crime, and there is no ingredient in the conspiracy which is not present in the substantive crime. Pinkerton v. United States, 328 U.S. 640, 643 66 S.Ct. 1180, 1182, 90 L.Ed. 1489.
As stated in that authority, "It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses."
The count involved sufficiently charges an unlawful agreement to do unlawful acts and must be upheld as a proper separate charge in the indictment. The challenge to the conspiracy count in relation to the statute of limitations is untenable in the law inasmuch as the overt acts charged are within the period of the statute. See Merrill v. United States, 5 Cir., 40 F.2d 315, 316.
The motion for the detailed particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure discloses an obvious attempt to launch a full-rigged "fishing expedition" into the evidence of the government. Such purpose is not allowable within the Federal Rules no matter how liberal their intendment.
A review of the legal principles in such applications generally and also as related to "aiding and abetting" details is found in United States v. Steinberg, D.C., 48 F. Supp. 182. The judicial position as to particulars of the conspiracy count is adequately reviewed in United States v. Lang, D.C., 40 F.Supp. 414.
As I have stated previously, the indictment here is plain, definite, concise, and detailed in the facts constituting the offenses charged as prescribed by the Federal Rules of Criminal Procedure. However, because of the intricacy of the charges made, it seems fair and just to permit some disclosure in order to insure *235 to the defendant sufficient information to properly prepare his defense. Many of the requests are repetitious, and particulars shall be filed and the motion is granted only as to the requests contained in items 2, 6, 7, 8 and 14 set forth in this particular notice of motion. In accordance with the fear expressed by the prosecution because the investigation is continuing, the order to be submitted in this respect shall specifically provide that the government shall not be limited in its proof as to the particulars hereby furnished.
The motion for discovery and inspection is not sufficiently supported to grant the relief requested under the terms of Rule 16 of the Federal Rules of Criminal Procedure. It is too indefinite and comprehensive, fails to show necessity and materiality of the numerous documents sought, and does not controvert the denial of the government that any such documents are in its possession by seizure or by process. See United States v. Chandler, D.C., 7 F.R.D. 365. Proper inspection of material documents should, if possible, be agreed upon and arranged for by the government and the defendant Titus. Otherwise, the motion is denied without prejudice to its proper renewal.
The motion for relief from prejudicial joinder seems premature if it is directed against the severance of trial with other defendants outside the ones named in the single indictment discussed herein. There has been no application by the prosecution to consolidate this indictment with any other for trial. If that be the purpose of the motion, it is denied without prejudice to proper renewal. If the motion herein is directed against the severance of Titus from trial with Klock and Root, it is denied because of its obvious impractical result and unwarranted burden of expense upon the prosecution.
To summarize, the motion to dismiss is denied; the motion for a bill of particulars is granted to the limited extent indicated; the motion for discovery and inspection is denied without prejudice to proper renewal; the motion for relief from prejudicial joinder is denied to the extent indicated.
|
732 F.2d 156
Wallacev.Illinois Cent. Gulf R. Co.
82-5544
United States Court of Appeals,Sixth Circuit.
3/9/84
1
W.D.Ky.
AFFIRMED
|
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-607
Filed: 4 September 2018
Durham County, Nos. 10 CVS 4392, 12 CVS 3945
NNN DURHAM OFFICE PORTFOLIO 1, LLC; et al., Plaintiffs,
v.
GRUBB & ELLIS COMPANY; GRUBB & ELLIS REALTY INVESTORS, LLC;
GRUBB & ELLIS SECURITIES, INC.; NNN DURHAM OFFICE PORTFOLIO, LLC;
AND NNN REALTY ADVISORS, INC., Defendants.
NNN DURHAM OFFICE PORTFOLIO 1, LLC; et al., Plaintiffs,
v.
HIGHWOODS REALTY LIMITED PARTNERSHIP; HIGHWOODS DLF 98/29, LLC;
HIGHWOODS DLF, LLC; HIGHWOODS PROPERTIES, INC.; GRUBB & ELLIS /
THOMAS LINDERMAN GRAHAM; and THOMAS LINDERMAN GRAHAM INC.,
Defendants.
Appeal by Plaintiffs from order entered 3 January 2017 by Chief Business
Court Judge James L. Gale in Durham County Superior Court, and cross-appeal by
Defendants from order entered 3 January 2017 by Chief Business Court Judge James
L. Gale in Durham County Superior Court. Heard in the Court of Appeals 6 March
2018.
Stark Law Group, PLLC, by Thomas H. Stark and Seth A. Neyhart, for
Plaintiff-Appellants.
Parker Poe Adams & Bernstein LLP, by Charles E. Raynal, IV, Jamie S.
Schwedler, and Catherine R.L. Lawson, for Defendant-Appellees Grubb & Ellis
Company and Grubb & Ellis Securities, Inc.
NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
Harris Sarratt & Hodges, LLP, by John L. Sarratt, for Defendant-Appellees
Grubb & Ellis Realty Investors, LLC, NNN Durham Office Portfolio, LLC and
NNN Realty Advisors, Inc.
Pnery Riemann, PLLC, by J. Anthony Penry for Appellant – NNN Durham
Office Portfolio 1, LLC, et al.
North Carolina Department of Secretary of State, by Enforcement Attorney
Colin M. Miller, for amici curiae, the North Carolina Secretary of State and the
North American Securities Administration Association, Inc.
DILLON, Judge.
I. Summary
Plaintiffs are entities and individuals who invested in a commercial real
property transaction. Defendants are entities who marketed the investment and
managed the property.
Years later, when the parties lost one of their main tenants and the real
property struggled to generate sufficient income to meet expenses, Plaintiffs sought
to remove Defendants as the property managers. To settle the matter, the parties
entered into an agreement (“Settlement Agreement”) whereby Defendants agreed to
step aside as property managers and Plaintiffs agreed to waive all claims they may
have had against Defendants.
The real property continued to struggle generating sufficient cash flow to cover
all expenses, including debt service, which led to a loan default; and the lender
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
eventually foreclosed. Thereafter, Plaintiffs commenced this action seeking damages
against Defendants. Defendants moved for summary judgment on all claims. After
a hearing on the matter, the trial court entered an order dismissing most, but not all,
of Plaintiffs’ claims. Both parties appealed.
We conclude that the trial court should have disposed all of Plaintiffs’ claims,
based on the Settlement Agreement. We, therefore, affirm in part and reverse in
part.
II. Background
In 2006, an affiliate of Highwoods Properties, Inc., (“Highwoods”) owned
certain income-producing office buildings in Durham (the “Property”). The Property’s
primary tenants and a sub-tenant were affiliates of Duke Hospital (“Duke”). Duke’s
lease terms were all set to expire by 2010, and Duke was not ready to commit on
extending the lease terms beyond 2010. Highwoods, therefore, decided to market the
property for sale while Duke had several years remaining on its lease terms.
Defendants entered into an agreement with Highwoods to purchase the
Property.1 Defendants’ intent in doing so was to remarket the Property to small
investors who had recently sold other property and were in the market for a qualified
1 For purposes of clarity, I refer to Defendants collectively throughout this opinion, though
they each played different roles. For instance, one contracted with Highwoods to purchase the
Property, another acted as a broker who solicited investors, and another served as the Property’s
manager. However, because of our resolution of this matter, it is not important to go into greater
detail of what each Defendant’s role was in the matter.
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
“worry-free” real estate investment as a vehicle to defer tax on capital gains. Before
closing, Defendants sought investors to participate in the purchase of the Property.
Specifically, Defendants offered an investment vehicle (the “Security”) which offered
investors tenant-in-common interests in the Property along with Defendants’ services
to manage the investment.
In early 2007, Defendants successfully found investors, which included
Plaintiffs. Defendants then closed on the purchase of the Property from Highwoods.
The purchase from Highwoods was funded in great part with money collected from
Plaintiffs and lender financing. Per the assignment provision in the purchase
contract between Defendants and Highwoods, Defendants instructed Highwoods to
convey the Property at closing directly to a number of entities, including Plaintiffs,
as tenants-in-common.
Several months later, in late 2007, Duke informed Defendants that it would
not be renewing most of its leases. And in 2010, Duke moved out of the majority of
its space in the Property, causing cash flow issues for Defendants and Plaintiffs.
As the cash flow issues progressed, Plaintiffs sought to have Defendants
replaced as the property managers. Defendants resisted. But on 25 March 2010,
Plaintiffs and Defendants entered the Settlement Agreement, whereby Defendants
agreed to step aside as the Property managers and whereby Plaintiffs agreed to
release claims that it may have against Defendants.
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
In 2012, the Property continued to struggle producing sufficient cash flow,
which resulted in a default of the loan. The lender foreclosed, and the Property was
sold to a third party at foreclosure at a loss to Plaintiffs.
Plaintiffs commenced this action against Defendants. In a separate action,
Plaintiffs sought damages from Highwoods and Highwoods’ broker. In both actions,
Plaintiffs allege that Defendants and Highwoods separately failed to make certain
disclosures around the time of the purchase in 2007 regarding Duke’s activities which
tended to lessen the likelihood that Duke would seek to renew its leases in 2010. The
trial court entered orders dismissing some of the claims against Defendants in this
action and all of the claims against Highwoods in the other action.
In 2017, both matters were brought up on appeal to our Court. The appeal of
the trial court’s dismissal of Plaintiffs’ claims against Highwoods is addressed in a
separate opinion.
This present appeal addresses the trial court’s decision to dismiss most, but
not all, of Plaintiffs’ claims against Defendants. Plaintiffs appealed, and Defendants
cross-appealed.
III. Appellate Jurisdiction
Before addressing the merits, we must first consider our appellate jurisdiction
since this appeal is interlocutory in nature. While the trial court has disposed of most
of the claims asserted by Plaintiffs, it denied Defendants’ request to dismiss claims
-5-
NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
brought under North Carolina securities law by the five Plaintiffs domiciled in North
Carolina (the “NC Securities Claims”).
Generally, we do not have jurisdiction to consider an appeal from an
interlocutory order unless the appellant meets its burden of demonstrating to our
Court how the order appealed from affects a substantial right or that the order has
been properly certified for immediate appeal by the trial court pursuant to Rule 54(b)
of our Rules of Civil Procedure. See N.C. Gen. Stat. § 1-277; N.C. Gen. Stat. § 1A-1,
Rule 54(b). Otherwise, we generally do not have jurisdiction unless we choose in our
discretion to grant a petition for a writ of certiorari.
Here, no party has made any argument that a substantial right has been
affected. The trial court has properly certified for immediate review all of the claims
that were dismissed, but the trial court did not certify for immediate review the NC
Securities Claims, which were not dismissed. Therefore, based on the trial court’s
Rule 54 certification, we have appellate jurisdiction only over the claims that were
dismissed, but not over the NC Securities Claims.
We note that no party has filed a petition requesting that we grant a writ of
certiorari to review the NC Securities Claims. On our motion, however, we hereby
issue a writ of certiorari “to aid in our own jurisdiction” to consider Plaintiffs’ NC
Securities Claims as well. N.C. Gen. Stat. § 7-27(c) (General Assembly granting to
the Court of Appeals jurisdiction “to issue prerogative writs . . . in aid of its own
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
jurisdiction, or to supervise and control the proceedings of any of the trial courts”).
We do so in the interests of judicial economy as our legal reasoning which resolves
the other claims and also resolves the NC Securities Claims.
IV. Analysis
Having determined that we have jurisdiction over this appeal, we address the
merits.
The trial court dismissed most of Plaintiffs’ claims, but not based on the
Settlement Agreement in which Plaintiffs purportedly agreed to release Defendants
from all claims related to the Property. Regarding the Settlement Agreement, the
trial court expressly held that the Settlement Agreement did not bar Plaintiffs from
pursuing the remaining claims against Defendants. Based on Section 2.4 of the
Settlement Agreement, which is discussed below, we conclude that all of Plaintiffs
claims against Defendants should have been dismissed.
In March 2010, Plaintiffs and Defendants entered into the Settlement
Agreement, whereby Defendants agreed to step aside without a fight if Plaintiffs
agreed to release Defendants from any potential claims relating to the Property. The
obligations in the Settlement Agreement, however, were not instantaneous, but the
Agreement allowed Plaintiffs a due diligence period, until 2 July 2010, to decide
whether they were willing to release Defendants from all claims. Specifically, Section
2.4 of the Settlement Agreement provided (1) that Plaintiffs had until 2 July 2010 to
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
“assert” any claims that it wished to exclude from the operation of the release; (2)
that if Plaintiffs elected to retain the right to assert certain claims, then Defendants
could elect to back out of their promise to resign as Property managers; and (3) that
if Plaintiffs did not duly assert any claims by 2 July 2010, then all potential claims of
Plaintiffs against Defendants would be released, and Defendants would be obligated
to complete the steps necessary to step aside as Property managers.
On 1 July 2010, the day prior to Plaintiffs’ deadline under Section 2.4 to assert
claims, Plaintiffs commenced this action by filing a Summons with the trial court
pursuant to Rule 3 of our Rules of Civil Procedure, which allowed Plaintiffs an
additional 20 days to file their complaint.2 In their Summons, Plaintiffs described
the nature of the claims they planned to assert in their complaint.
Importantly, though, Plaintiffs did not notify Defendants of the Summons or
otherwise of their intent to assert claims by the 2 July 2010 deadline. Rather, based
on the record and the findings of the trial court, Defendants did not become aware of
Plaintiffs’ intention until they received a copy of the Summons on 12 July 2010, which
Plaintiffs had mailed five days earlier on 7 July 2010.
The issue raised in this appeal is whether Plaintiffs properly “asserted” claims
under Section 2.4 of the Settlement Agreement by simply commencing the action by
2 July 2010 or whether under Section 2.4 Plaintiffs were required also to notify
2 Rule 3 allows a party to commence an action by filing a summons and requesting permission
to file the complaint within 20 days. N.C. Gen. Stat. § 1A-1, Rule 3.
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
Defendants of their intent by 2 July 2010 to exclude claims they wished to assert from
the operation of the release. The language of Section 2.4 states as follows:
It is acknowledged that the release provisions contained in
Paragraph 2.1 and 2.2 are subject to and conditioned upon
the absence of any claims by [Plaintiffs] asserted against
[Defendants] prior to July 2, 2010[.] [Plaintiffs] shall have
until [July 2, 2010] to conduct such inquiries and
investigations as they may determine to be necessary and
appropriate . . . to determine whether or not they have a
viable claim against [Defendants].
Should [Plaintiffs] discover such a claim, they shall give
written notice to [Defendants] of such claim (an “Excluded
Claim”) prior to [July 2, 2010], including the description of
the basis of such claim in reasonable detail,
and
they shall commence an action or arbitration proceeding
with regard to such Excluded Claim prior to [July 2, 2010].
Should [Plaintiffs] duly and timely assert an Excluded
Claim prior to [July 2, 2010] . . . the [release] shall be void
and of no force and effect with respect to the Excluded
Claim . . . [.]3
Plaintiffs argued to the trial court (and argue here on appeal) that Plaintiffs met their
contractual obligations “to assert an Excluded Claim” under the Settlement
Agreement simply by filing the Summons which commenced this action by 2 July
2010, without providing any notice by 2 July 2010 to Defendants. Defendants argued
to the trial court (and argue here on appeal) that Plaintiffs could only properly
3 This paragraph in the actual Settlement Agreement is a single block paragraph. It is broken
up in this opinion for ease of reading.
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
“assert” a claim by both commencing their action and notifying Defendants in writing
of their intent to exclude claims from the reach of the release.
The trial court concluded that Section 2.4 was ambiguous and, therefore, that
the provision should be read “restrictively” against Defendants, such that Section 2.4
“effectively precluded the release from becoming effective once Plaintiffs initiated
their action on July 1, 2010,” notwithstanding that Plaintiffs did not give Defendants
any notice until after 2 July 2010.
In reviewing the trial court’s interpretation, we are mindful of a court’s role in
construing contract language:
Interpreting a contract requires the court to examine the
language of the contract itself for indications of the parties’
intent at the moment of execution. If the plain language is
clear, the intention of the parties is inferred from the words
of the contract. Intent is derived not from a particular
contractual term but from the contract as a whole.
State v. Philip Morris, 363 N.C. 623, 631-32, 685 S.E.2d 85, 90 (2009) (citations
omitted).
We have reviewed Section 2.4 in context with the entire agreement, and we
disagree with the trial court’s interpretation that Section 2.4 did not require Plaintiffs
to notify Defendants of their intent to exclude claims by the 2 July 2010 deadline.
Reading the contract as a whole, based on its plain language, we conclude that the
parties intended that Plaintiffs were required both to file their action and separately
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
to notify Defendants of such claims, all by the 2 July 2010 deadline, to preserve any
claims that they did not want to release. Each requirement served different purposes.
Under the terms of the Settlement Agreement, Plaintiffs were required to file
their action by 2 July 2010 to avoid any claim from being barred by the applicable
statute of limitations. That is, under another provision of the Settlement Agreement,
Defendants agreed that all applicable statute of limitations with respect to any
potential claims would be tolled from the date of the agreement in March 2010 until
2 July 2010, while Plaintiffs conducted their due diligence. The requirement that a
lawsuit be filed clarified that statutes of limitations would be tolled indefinitely for
any claims which Plaintiffs wished to assert, but that they would only be tolled until
2 July 2010.
The “notice” requirement – that Plaintiffs provide actual notice to Defendants
of any claims by 2 July 2010 – served a different purpose. Specifically, the Settlement
Agreement contemplated that during Plaintiffs’ due diligence period, Defendants
would allow Plaintiffs’ chosen Property manager to manage the Property on a
subcontract basis and that Defendants would also work with Plaintiffs in obtaining
the required lender approval for the change in management. The last portion of
Section 2.4 of the Settlement Agreement provided that Defendants would have the
right to cease these efforts and terminate the subcontracts with Plaintiffs’ chosen
manager if Plaintiffs elected to assert claims. If Plaintiffs were not required to give
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
notice by 2 July 2010 that they intended not to release Defendants from all claims,
then the provision in Section 2.4 relieving Defendants of their obligation under the
Settlement Agreement to step aside as Property managers in such case could be
rendered meaningless; Defendants could not enforce this right unless they knew
Plaintiffs had decided not to grant a full release. As described below, under Plaintiffs’
interpretation, Plaintiffs could have withheld notice for many months until after
Defendants had completed the process of stepping aside as Property managers.
But first, we note that a plain reading of Section 2.4, when read in context of
the whole Settlement Agreement, supports our interpretation. This Section describes
2 July 2010 as the “Effective Date of Release,” at which time Plaintiffs’ release of all
potential claims against Defendants would become effective under the Settlement
Agreement.
The first sentence of Section 2.4 states that the release would be effective
unless Plaintiffs “asserted” claims against Defendants by “2 July 2010 (the “Effective
Date of Release”).”
The second sentence states that Plaintiffs would be allowed to conduct due
diligence until the Effective Date of Release to determine if they wanted to assert
claims.
The third sentence is the key sentence, which states how Plaintiffs were
required to “assert” claims that they wished to exclude from the operation of the full
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
release. This third sentence is a single compound sentence and required that
Plaintiffs “shall give written notice to [Defendants] prior to the Effective Date of
Release, and they shall commence an action or arbitration [] prior to the Effective
Date of Release.”
The fourth sentence then states that “[s]hould [Plaintiffs] duly and timely
assert an Excluded Claim prior to the Effective Date of Release[,]” then the provisions
of the full release “shall be void and of no force and effect with respect to the Excluded
Claim” and further Defendants could cancel the subcontracts with Plaintiffs’ chosen
Property manager.
In sum, we conclude that a plain reading of this Section required that to “duly
and timely assert” a claim, Plaintiffs had to notify Defendants and file their action
by 2 July 2010.
Based on Plaintiffs’ (and the trial court’s) interpretation of Section 2.4 – where
Plaintiffs could duly “assert” a claim by simply commencing an action without
otherwise notifying Defendants by 2 July 2010 – Plaintiffs could have waited until
Defendants had stepped aside as Property managers to notify Defendants of this
lawsuit. For instance, under Plaintiffs’ and the trial court’s interpretation, Plaintiff
could have waited until 22 July 2010 to file their Complaint (pursuant to the 20-day
extension provided in Rule 3). And then Plaintiffs could have waited at least until
September 2010 to serve their Summons/Complaint on Defendants. In fact, by taking
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
advantage of Rule 4(d) of our Rules of Civil Procedure, Plaintiffs could have kept
Defendants in the dark about their intentions well into 2011 by extending the
Summons or suing out successive alias and pluries summonses. In other words,
based on Plaintiffs’ interpretation, it would have been possible that Defendants have
completed their agreement to fully step aside as Property managers and that
Plaintiffs’ chosen manager would have fully been in place as manager without
Defendants ever having any knowledge that Plaintiffs still intended to assert claims
against them.
It may be argued that time was not of the essence with regard to the 2 July
2010 deadline. In other words, if time was not of the essence with respect to the 2
July 2010 date, Plaintiffs had a reasonable time after 2 July 2010 to provide the
written notice to Defendants. However, Plaintiffs failed to make any such argument
either to the trial court or on appeal to our Court. Therefore, any argument that time
was not of the essence is waived. N.C. R. App. P. 28.
But assuming that the argument was preserved, we believe that time was of
the essence and 2 July 2010 was a hard deadline. Section 2.4 of the Settlement
Agreement, which essentially provided Plaintiffs with a unilateral option to exclude
claims from the reach of the release, is similar to an option contract to purchase real
estate. In an option contract, the potential buyer pays consideration for the “option,”
but not the obligation, to purchase certain real estate at a specified price if exercised
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
by a specified date. And our Supreme Court has stated that time is automatically of
the essence as to the option date in such contracts. See Ferguson v. Phillips, 268 N.C.
353, 355, 150 S.E.2d 518, 520 (1966) (“Options being unilateral in their inception are
construed strictly in favor of the maker, because the other party is not bound to
performance[.]”). Similarly, under the Settlement Agreement, Plaintiffs were given
the unilateral option to back out of its obligation to release Defendants from all
claims. They could simply notify Defendants that they did not want to release claims.
Defendants, on the other hand, did not have the option to back out unilaterally.
Rather, they could only do so if Plaintiffs first decided to back out.
Additionally, we believe that the Settlement Agreement, when read as a whole,
otherwise suggests that the parties intended for 2 July 2010 to be of the essence.
Specifically, the Settlement Agreement provided that the statutes of limitations
regarding any potential claims would not be tolled beyond 2 July 2010. And, as our
Supreme Court has recognized, “[s]tatutes of limitations are inflexible and
unyielding. They operate inexorably without reference to the merits of [a] plaintiff’s
cause of action.” Pearce v. N.C. Highway, 310 N.C. 445, 451, 312 S.E.2d 421, 425
(1984).
We note Plaintiffs’ brief contains an argument that Defendants waived the
“notice” requirement contained in Section 2.4 of the Settlement Agreement based on
Defendants’ “previous position that their own obligations under the Settlement
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
Agreement had been voided under this same language in Section 2.4.” In support of
their argument, Plaintiffs cite to statements made by an employee during the course
of this litigation and quote McDonald v. Medford, 111 N.C. App. 643, 648, 433 S.E.2d
231, ___ (1993) that “[w]here parties, through their actions, have placed a practical
interpretation on their contract after executing it, the courts will ordinarily give it
that construction[.]” However, Plaintiffs do not state what “actions” Defendants took
to indicate that they were voiding their obligations under Section 2.4. They do not
point to anything in the record which suggests that Defendants attempted to step
back in as Property managers once they became aware of this lawsuit. And the trial
court did not make any findings to that effect. On the contrary, in their Answer,
Defendants expressly assert that all Plaintiffs’ claims had been settled and released
by virtue of the Settlement Agreement. Accordingly, we conclude that Plaintiffs have
failed to demonstrate from the record that a genuine issue of material fact exists that
Defendants waived the notice provision contained in Section 2.4 of the Settlement
Agreement.
V. Conclusion
We conclude that all of Plaintiffs claims against Defendants concerning the
Property are barred by operation of the Settlement Agreement. The trial court,
though, only granted Defendants’ motion for summary judgment in part, allowing the
NC Securities Claims to proceed. Therefore, we affirm in part and reverse in part the
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NNN DURHAM OFFICE PORTFOLIO I, LLC V. GRUBB & ELLIS COMPANY.
Opinion of the Court
trial court’s order. We remand that matter to the trial court with instructions to enter
judgment in favor of Defendants on all claims asserted by Plaintiffs.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Judges BRYANT and TYSON concur.
- 17 -
|
827 F.Supp. 472 (1993)
Oddie CLEARY, Lewis C. Brooks, Claude Howard, John Williams, Leonid Brenman, and Louis A. Osterling, Plaintiffs,
v.
ADM MILLING CO., Defendant.
No. 92 C 1190.
United States District Court, N.D. Illinois, E.D.
June 21, 1993.
*473 Marvin Gittler, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, IL, Andrew Scott Ward, Charles L. Berger, Berger & Berger, Evansville, IN, for plaintiffs.
Timothy C. Klenk, Jerome Kiley Bowman, Pope, Ballard, Shepard & Fowle, Ltd., Chicago, IL, for defendant.
MEMORANDUM OPINION
BRIAN BARNETT DUFF, District Judge.
The plaintiffs have filed a one count amended complaint against their employer, ADM Milling Co. ("ADM"), in which they allege that ADM violated Section 207 of the Fair Labor Standards Act (the "FLSA") by not compensating the plaintiffs for off-work time in which they were "on-call." Defendant ADM has filed a motion for summary judgment. For the reasons discussed below, the court grants ADM's motion.
Background
This suit was filed by 6 of the 7 maintenance employees at ADM's Chicago wheat processing plant (the "Plant").[1] All of the plaintiffs are members of the American Federation of Grainmillers, Local 69 (the "Union"), which represents the plaintiffs and all other ADM production employees in contract negotiations at the Plant.
The Plant operates on three 8-hour shifts, and the plaintiffs normally work on the first shift 6:30 a.m. to 3:00 p.m. If repairs are required on the second or third shifts or on weekends, the "miller" on duty will page one of the plaintiffs and request that he come in. Pursuant to an agreement between the Union and ADM, such "call-ins" are made in order of seniority, starting with the most senior employees. Since ADM began operating the Plant, the plaintiffs have averaged 1.25 call-ins each per week, with the average call-in lasting an hour and ten minutes, excluding travel time.[2]
With one exception (Mr. Brooks, who lost his pager), the plaintiffs carry pagers so that *474 they can be contacted for call-ins without having to remain at home or near a telephone. These pagers, which are about half the size of a package of cigarettes and can be set in either an audio or vibration mode, are provided by ADM at no cost to the plaintiffs. After receiving a page, the employees have one half hour to respond by telephone, and one hour from the original phone call from the Plant in which to arrive at the Plant.
During the time period relevant to this litigation, two collective bargaining agreements were in effect (hereafter, the "1988 CBA" and "1990 CBA").[3] Both collective bargaining agreements describe the plaintiffs' wages, including the pay for call-ins. The 1990 CBA, for example, provides that for each call-in, no matter how short the duration, employees shall receive the greater of four hours pay at their regular hourly rate or time and a half for the time actually spent working at the Plant. Neither collective bargaining agreement, however, contains any provision for pay to maintenance workers for simply being on-call.
Although the plaintiffs assert that employees are restricted in the range of activities they can pursue while on-call, they do not assert that any employee was ever formally disciplined for failing to respond to a call-back. Moreover, while ostensibly on-call, the plaintiffs ate out at restaurants, went to the movies, watched sports on TV, entertained friends and family, went to a pool hall, gardened, and played games with family members.[4] Indeed, the plaintiffs occasionally did not respond to pages; called to state that they could not come in because of excessive alcohol consumption; or informed their supervisor (or the miller responsible for paging maintenance people) before the end of their shift that they did not wish to be paged that evening.[5] ADM has no rules about where or how far from the Plant the plaintiffs may live. Furthermore, M.C. Ragland, the mill-wright who is not a plaintiff in this case, does not carry a pager or participate in the call-in program.
Although both the 1988 CBA and the 1990 CBA contain grievance procedures, at no time has any plaintiff (or any other employee) ever presented any grievance to the Union or ADM in which it was claimed that ADM should pay maintenance employees for simply being on-call. Plaintiff Oddie Cleary was on the Union committee that negotiated both the 1988 CBA and the 1990 CBA.
Nevertheless, on February 14, 1992, the plaintiffs filed the instant action in which they allege that the failure of ADM to pay them for on-call time is a violation of the FLSA. The plaintiffs request a total damage award in excess of $560,000.00 per plaintiff (1.5 times their normal pay rate for an additional 16 hours for every day they worked an 8-hour shift, and 1.5 times their normal pay rate for 24 hours for every day they did not work at all). For the following reasons, this court grants ADM's motion for summary judgment.
Discussion
Rule 56 of the Federal Rules of Civil Procedure requires this court to enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court must "decide whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. All reasonable inferences, however, must *475 be drawn in the non-movant's favor. Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990).
Although the Seventh Circuit has not directly addressed the issue of compensation for "on-call" time under the FLSA, the Supreme Court has held that under appropriate circumstances, waiting time may constitute working time under the FLSA.[6]Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944). The key inquiry is whether the "on-call" time "is spent predominantly for the employer's benefit or for the employee's ... [a question] dependent upon all the circumstances of the case." Id. In other words, "facts may show that the employee was `engaged to wait,' which is compensable, or they may show that the employee `waited to be engaged,' which is not compensable." Owens v. Local No. 169, 971 F.2d 347, 350 (9th Cir.1992), quoting Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944).
In determining whether waiting time is spent primarily for the benefit of the employer, courts have emphasized two predominant factors: 1) the degree to which the employee is free to engage in personal activities during the on-call period;[7] and 2) the agreement between the parties.[8]
A. Employee's Freedom to Engage in Personal Activities.
The regulations which clarify the "waiting to be engaged" doctrine state that an employee's on-call time is only compensable when "the employee is unable to use the time effectively for his own purposes." 29 C.F.R. § 785.15. This does not mean "that the employee must have substantially the same flexibility or freedom as he would if not on-call, else all or almost all on-call time would be working time, a proposition that the settled case law and the administrative guidelines clearly reject." Bright, 934 F.2d at 677.
When analyzing an employee's ability to effectively use his time for his own purposes, courts have considered a number of factors including: "(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee's movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time." Owens, 971 F.2d at 351 (collecting cases) (footnotes deleted).
There is no single dominant factor, and substantial interplay exists among them. Id. For instance, a short time limit for response will have the effect of restricting an employee's geographical movements. If the worker strays too far from the jobsite, he will not be able to return there in time to meet the response time requirements. Likewise, the frequency and length of call-backs will affect the ability of the employee to engage in certain personal activities. In Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir.1991), the Tenth Circuit held that a 20 minute response time limit, combined with 3-5 call backs per day and no freedom to decline a call-back, entitled a municipal fireman to compensation under the FLSA. Id. at 1535-1538. In contrast, in Bright, the en banc Fifth Circuit ruled against a plaintiff who was required to respond to all calls; responded to an average of four to five calls *476 per week; was required to be reachable by beeper; was required to be at the hospital "within approximately 20 minutes" of getting a call; and could not be intoxicated. Bright, 934 F.2d at 672-679. While the Bright decision acknowledged that the on-call status made the plaintiff's job "highly undesirable and arguably somewhat oppressive," the Fifth Circuit nevertheless observed that "the FSLA's overtime provisions are more narrowly focused than being simply directed at requiring extra compensation for oppressive or confining conditions of employment." Id. at 678.
In the case at bar, the plaintiffs were clearly able to use the on-call time effectively for their purposes. There was no on-premises living requirement; there were not excessive geographical restrictions on employee movements (e.g., there are no rules about where or how far from the Plant the plaintiffs could live); the frequency of call backs (on average, 1.25 times per week) was not unduly restrictive;[9] the time limit for response (one hour) was not unduly restrictive; the employees could request that they not be paged on a given night;[10] the employees engaged in a variety of personal activities while on-call; the employees were never formally disciplined for ignoring a page; and finally, the employees were not tied to a telephone, since ADM provided them with pagers.[11]
Based on these undisputed facts, the court concludes that the plaintiffs were in fact able to use the on-call time effectively for their own purposes.
B. Agreement Between the Parties.
Another important factor in determining whether on-call time is compensable is "whether the policy was based on an agreement between the parties." Owens, 971 F.2d at 354. In the case at bar, the on-call compensation procedure was a direct product of the collective bargaining process. Even though both the 1988 CBA and the 1990 CBA explicitly addressed compensation for call backs neither provided any compensation for on-call time. As in Owens, "because Plaintiffs were employed under a collective bargaining agreement that provided overtime compensation for actual call-in work, but not for other off-duty time", the plaintiffs in the case at bar implicitly accepted the terms of their employment. See, Owens, 971 F.2d at 355. This is especially damaging to the plaintiffs' case since plaintiff Oddie Cleary was on the Union committee that negotiated both collective bargaining agreements.
Furthermore, although both the 1988 CBA and the 1990 CBA contain grievance procedures, at no time has any plaintiff (or any other employee) ever presented any grievance to the Union or ADM in which it was claimed that ADM should pay maintenance employees for simply being on-call.[12]*477 This, too, implies constructive acceptance of the lack of compensation for on-call time. See, Rousseau, 805 F.2d at 1248 ("continuance of employment can be evidence of an implied agreement to the terms of that employment"); Owens, 971 F.2d at 355 ("the Plaintiff mechanics in the present case may not have liked the company's formal call-in system, but by continuing to work, they constructively accepted the new terms").
Hence, both the actual collective bargaining agreements and the parties' practical construction of these agreements indicate that they did not intend on-call time to be compensable.
In sum, the undisputed evidence regarding the degree to which the plaintiffs are free to engage in personal activities while on-call and the agreements between the parties is so one-sided that ADM must prevail as a matter of law.
Conclusion
For the foregoing reasons, the defendant's motion for summary judgment is granted.
NOTES
[1] Except where specifically indicated otherwise, the undisputed material facts upon which this opinion is based are taken from the joint statement of undisputed facts contained in the parties' August 21, 1992 Final Pre-trial Order. The parties agreed that that joint statement is a part of the evidentiary record in the case and may be read to the jury by the Court or any party. Final Pre-trial Order at p. 2.
[2] In the statement of undisputed facts contained in the Final Pre-trial Order, the plaintiffs stipulate to the accuracy of defendant's exhibit 11 (average frequency of call-ins per plaintiff from 1/22/90-6/28/92) and defendant's exhibit 13 (average time worked per call-in from 1/22/90-6/28/92). These exhibits indicate that each of the plaintiffs received an average of 1.25 call-backs per week, and that each call-back lasted an average of one hour and ten minutes, excluding travel time. In their Local Rule 12(N) statement (which was filed approximately four months after the Final Pre-trial Order), however, the plaintiffs state that they "dispute the reliability" of these exhibits because ADM failed to maintain all payroll records of the plaintiffs. This argument lacks merit. As indicated by Exhibit L to ADM's 12(M) statement, only 8 out of 468 time cards are missing, and those 8 time cards were not included in the calculations in the relevant tables. Hence, this portion of the plaintiffs' 12(N) statement not only contradicts their stipulation in the Final Pretrial Order, but it is also unsupported. Accordingly, the court deems the plaintiffs to have admitted that they each received an average of 1.25 call-backs per week, and that each call-back lasted an average of one hour and ten minutes, excluding travel time.
[3] ADM purchased the Plant from Dixie Portland Flour Mills, Inc. and started operating it on January 22, 1990. The 1988 CBA was in effect from July 1, 1988 through June 30, 1990. The 1990 CBA has been in effect since July 1, 1990 and will remain in effect until July 1, 1993.
[4] All of the undisputed facts in this sentence were taken from the parties' 12(M) and 12(N) statements.
[5] If there is a major breakdown, however, all of the plaintiffs may be called in.
[6] The FLSA requires that employers provide overtime compensation to employees who work more than forty hours per week. 29 U.S.C. § 207(a)(1).
[7] Skidmore, 323 U.S. at 138, 65 S.Ct. at 163; Birdwell v. City of Gadsden, 970 F.2d 802, 809-10 (11th Cir.1992); Martin v. Ohio Turnpike Com'n, 968 F.2d 606, 609-11 (6th Cir.1992), cert denied ___ U.S. ___, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993); Cross v. Arkansas Forestry Com'n, 938 F.2d 912, 916-17 (8th Cir.1991); Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671, 674-78 (5th Cir.1991) (en banc), cert. den. ___ U.S. ___, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992).
[8] Skidmore, 323 U.S. at 137, 65 S.Ct. at 163; Owens, 971 F.2d at 354-355; Brock v. El Paso Natural Gas Co., 826 F.2d 369, 373-74 (5th Cir. 1987); Rousseau v. Teledyne Movable Offshore, Inc., 805 F.2d 1245, 1248 (5th Cir.1986), cert. den. 484 U.S. 827, 108 S.Ct. 95, 98 L.Ed.2d 56 (1987).
[9] Even if the plaintiffs' were called back 2-8 times per week (as the plaintiffs belatedly suggest without support), this still would not be unduly restrictive. Compare Renfro (3-5 call backs per day; FLSA liability) with Bright (4-5 call backs per week; no FLSA liability).
[10] See, e.g., Brock, 826 F.2d at 373-374 (ability to trade call-back responsibilities increased employee's ability to use off-hours for her own purposes).
[11] In contrast, in Cross, one of the few FLSA/"on-call" cases in which the plaintiffs actually prevailed, one of the key factors was the requirement that the employees actively monitor radios, and not simply carry pagers: "Because the radio must be on at all times, the employees' ability to entertain in their homes, attend social gatherings, attend church services or engage in personal pursuits is limited. The employees' ability to enjoy common activities such as watching television or reading is also decreased because they must devote attention to radio transmissions." Cross, 938 F.2d at 917.
[12] Plaintiffs also argue in their brief in opposition to the summary judgment motion that the Portal to Portal Act, 29 U.S.C. § 254, requires that the time plaintiffs spend traveling to and from each call-back be compensated, on the grounds that it is integral to or closely related to the employees' regular duties. In the amended complaint, however, the plaintiffs do not allege any violation of the Portal to Portal Act. Accordingly, this argument is not properly before the court. Even if it were, the plaintiffs' claim is barred by the unambiguous language of the statute, which provides that "... no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on account of the failure of such employer to pay an employee ... for ... travelling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform ..." 29 U.S.C. § 254(a)(1). The exception to § 254(a)(1) for employers who maintain a "custom or practice" of compensating employees' for such travel time is clearly inapplicable here, since the custom or practice of ADM is not to pay the plaintiffs for travel time.
|
46 F.Supp. 709 (1942)
SORRENTINO
v.
GLEN-GERY SHALE BRICK CORPORATION et al.
No. 2447.
District Court, E. D. Pennsylvania.
September 10, 1942.
*710 John Pemberton Jordan, of Philadelphia, Pa., for plaintiff.
Frederic L. Clark (of Shields, Clark, Brown & McCown), of Philadelphia, Pa., for defendants A. S. Squier and Fallston Co.
Herbert A. Speiser (of Speiser & Speiser), of Philadelphia, Pa., for defendant Anna Margolis et al.
Ernest Scott and Philip L. Leidy (of Pepper, Bodine, Stokes & Schoch), both of Philadelphia, Pa., and George A. Kershner (of Zieber & Snyder), of Reading, Pa., for defendant Glen-Gery Shale Brick Corporation and its officers.
BARD, District Judge.
This action was instituted by plaintiff against Glen-Gery Shale Brick Corporation, its officers, Fallston Brick Company, A. A. Squier, Philadelphia representative of these two firms, and a number of defendants trading as S. Margolis, for treble damages resulting from the alleged violation by these defendants of the Sherman and Clayton Acts, 15 U.S.C.A. § 1 et. seq. and 38 Stat. 730. All of the defendants have filed motions to dismiss the complaint.
The complaint alleges that plaintiff is engaged in the business of selling in interstate and intrastate commerce lumber, sand, cement and other building materials, and maintains his offices in Philadelphia. Defendants Glen-Gery and Fallston are brick manufacturers located in Pennsylvania and conducting an interstate business. Both firms are represented by the defendant Squier as their Philadelphia sales agent. The defendants Margolis are a competitor of the plaintiff, maintaining offices near those of the plaintiff in Philadelphia, and likewise sell building materials in interstate commerce.
In October, November and December of 1941 plaintiff placed orders with and received deliveries of brick from Glen-Gery. At that time he advised Glen-Gery and Squier that he had an established business requiring delivery of supplies to New Jersey and Delaware, and he was assured by them that Glen-Gery would make deliveries of any orders placed by him with it. In reliance upon such assurance plaintiff made extensive alterations in his office building and storage facilities and he purchased additional land, all of which entailed an expenditure of approximately $40,000. In January and February of 1942 plaintiff sought to purchase brick from Glen-Gery and from Fallston *711 and was advised by these firms and by Squier, their Philadelphia representative, that because of the threats of Margolis to withdraw its account if they continued to supply plaintiff and his customers with brick, they would not make any sales to plaintiff. These refusals continued and Glen-Gery and Fallston told plaintiff that Margolis was their exclusive dealer in the Philadelphia and nearby New Jersey area and that if plaintiff wanted to purchase brick manufactured by the defendants he would have to purchase it from Margolis.
Plaintiff's first contention is that the foregoing action of the defendants constitutes a violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2, which provide:
"§ 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. * * *."
"§ 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor * * *."
That plaintiff's complaint fails to set forth a violation of these sections of the Sherman Act is clear. The fundamental element to establish a violation of those sections of that act is the intent or effect of creating a monopoly or unduly restraining trade in a particular commodity, and thereby to affect adversely the public interest. The complaint contains no allegation that any or all of the defendants have such control over the supply of brick in the Philadelphia area that as a result of the refusal of the defendant manufacturers to sell brick directly to plaintiff, he is unable to purchase brick for his business. The sole charge is that defendant manufacturers refuse to sell directly to plaintiff and sell their products in the Philadelphia area exclusively to the defendants Margolis. This does not make out a violation of the Sherman Act. The Sherman Act does not deprive a manufacturer of the right to sell his own customers in the business in the absence of a showing that he has combined with others with the intent of affecting or destroying the right of freedom to trade. United States v. Colgate & Company, 250 U.S. 300, 39 S.Ct. 465, 63 L. Ed. 992, 7 A.L.R. 443; Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co., 2 Cir., 227 F. 46. Said the Supreme Court in the Colgate case at page 307 of 250 U.S., at page 468 of 39 S.Ct., 63 L.Ed. 992, 7 A. L.R. 443: "The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commercein a word to preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal."
Plaintiff's second contention is that the actions of the defendants are in violation of the Robinson-Patman Amendment to the Clayton Act, 15 U.S.C.A. § 13, which makes it unlawful for a person engaged in interstate commerce "to discriminate in price between different purchasers of commodities of like grade and quality, * * * where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them." This section further provides that nothing contained therein "shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade."
Plaintiff's arguments that his past purchases from Glen-Gery make him a "purchaser" within the meaning of this section and that defendant manufacturers' refusal to sell him while selling to Margolis constitutes a "discrimination" between "purchasers" in violation thereof cannot be sustained. In Shaw's, Inc., v. Wilson-Jones Co., 105 F.2d 331, the Circuit Court of Appeals for this circuit construed this section flatly to the contrary. In that case the plaintiff was a dealer in supplies who had made purchases for three years from the defendant and who had planned to bid upon a contract to supply certain materials to the Registration Commission of Philadelphia. Defendant repeatedly promised to quote to the plaintiff prices at which it would supply certain materials required under *712 this contract, but subsequently refused to do so and quoted prices to a company competing with plaintiff and to that company only, which thereupon was successful in obtaining the contract. In upholding the action of the District Court in dismissing a complaint alleging violation of this section of the Clayton Act Judge Biggs said at page 333 of 105 F.2d:
"The appellant contends that the appellee has discriminated `in price' between different purchasers because the appellant refused to quote prices. The phrase `to discriminate in price', employed in Section 2 (a) considered by itself and entirely out of its context, might be deemed to include a refusal to offer a price to a customer upon goods which the latter desired to offer for resale. Such a conclusion is insupportable, however, after consideration of other language of the section. The discrimination in price referred to must be practiced `between different purchasers'. Therefore at least two purchases must have taken place. The term purchaser means simply one who purchases, a buyer, a vendee. It does not mean one who seeks to purchase, a person who goes into the market-place for the purpose of purchasing. In other words, it does not mean a prospective purchaser, or one who wishes to purchase, as the appellant contends.
"The appellant in its brief lays emphasis upon the fact that the appellee had sold supplies to it in the past and had promised to quote prices so that the appellant might bid upon Registration Commission contract. In short, the appellant contends that it was a customer of the appellee's and therefore a purchaser. Section 2 of the Act was designed, however, to prevent interference with the current of commerce. For the provisions of the Section to be operative, goods or commodities must be in the flow of commerce, or services must have been rendered or have been contracted to be rendered in connection with goods or commodities so placed. We may surmise that if the goods or commodities are not wholly within that flow, they at least must be touched by it, affected by it, so to speak. This we think to be the limitation imposed by Congress. Past purchases or conversations in respect to possible future purchases are insufficient."
Pursuant to a stipulation of all parties, the complaint was amended and it was agreed that the briefs and arguments on the motions to dismiss should be considered as if made to the amended complaint. In the amended complaint plaintiff sets forth that Glen-Gery is the maker of a particular type of brick identified as "Bartex"; that because of its superior qualities, design and color it is in great demand in the building industry, and that this "type brick" is required in the "major portion of building contracts"; that defendant Glen-Gery controls its sales and distribution; and that defendant Glen-Gery sells it to Margolis but refuses to sell it to the plaintiff with the purpose of lessening competition and creating a monopoly therein. It is alleged that this constitutes a violation of the Clayton Act as amended by the Robinson-Patman Amendment, to which the decision of the Circuit Court of Appeals in the Shaw case, supra, would seem to be a sufficient answer.
Inasmuch as plaintiff has failed to set forth in his complaint any violation of the Sherman or Clayton Acts, the defendants' motions to dismiss the complaint are granted.
|
78 F.Supp.2d 1266 (1999)
Marie ANDERSON, Plaintiff,
Aquanita Jefferson, Edna McCoy and Daisy Brown, Plaintiff-Intervenors,
v.
BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, AL, and Harold W. Dodge, Superintendent, Mobile County School System, Defendants.
No. Civ.A. 98-0610-RV-S.
United States District Court, S.D. Alabama, Southern Division.
September 24, 1999.
*1267 Vanessa A. Shoots, Henry H. Caddell, Thiry and Caddell, Mobile, AL, for Plaintiff.
Robert C. Campbell III, Kathryn W. Petersen, William K. Morris, Sintz, Campbell, Duke & Taylor, Mobile, AL, for Defendants.
ORDER
VOLLMER, District Judge.
This matter comes before the court on plaintiff's and plaintiff-intervenors' motions for leave to amend their complaints,[1] defendants' motion to dismiss plaintiffs' § 1981 claims,[2] and defendants' motion for summary judgment.[3] The court will address each motion in turn.
I. PROCEDURAL BACKGROUND
On June 16, 1998, plaintiff Marie Anderson brought this action against the Board of School Commissioners of Mobile County (the "Board") and Mobile County School System Superintendent Paul J. Sousa[4] (collectively, "defendants") under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 41 U.S.C. § 2000 et seq.[5] Anderson's complaint alleged that the new principal of Theodore High School, who is white, refused to hire Anderson as a teacher for the 1997 summer term because Anderson is African-American.
On August 27, 1998, Aquanita Jackson, Edna McCoy and Daisy Brown (collectively, "plaintiff-intervenors") filed a motion to intervene as plaintiffs in this action. They alleged that the Theodore High School principal also denied their applications for teacher positions for the 1997 summer term because of their African-American race. They further alleged that the issues raised by their proposed complaint in intervention are virtually identical to the issues raised by Anderson's complaint, "except that the proposed Intervenors rely solely upon 42 U.S.C. § 1981 and do not assert claims under [Title VII,] 42 U.S.C. § 2000(e), et. seq."[6] Over defendants' objection, this court granted the motion to intervene on November 24, 1998.
On September 15, 1998, pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, this court issued a scheduling order which stated that all motions to amend the pleadings must be filed by February 1, 1999, and that all dispositive motions must be filed by April 15, 1999. The *1268 court subsequently extended the dispositive motion deadline to April 22, 1999.
On April 22, 1999, defendants filed a motion for summary judgment as to all claims, arguing that: (1) plaintiff and plaintiff-intervenors (collectively, "plaintiffs") had not shown intentional discrimination; (2) the superintendent was improperly named as a defendant; and (3) defendants could not be held vicariously liable under § 1981 for the principal's actions.
Shortly thereafter, on May 7, 1999, plaintiff-intervenors filed a "Motion and Brief for Leave to Amend Intervenors' Complaint to Add Claims Under Title VII Based Upon the Same Factual Allegations." In this motion, plaintiff-intervenors invoked Rule 15(a) of the Federal Rules of Civil Procedure and requested leave to file an amended complaint adding claims under Title VII after the February 1, 1999 Rule 16(b) Scheduling Order deadline. The motion argued that leave should be granted because plaintiff-intervenors were entitled to plead Title VII claims when they filed their original complaint in intervention and because the proposed amendment "would not prejudice Defendants in any way."
On August 5, 1999, defendants filed a "Motion to Dismiss or, in the Alternative, Motion for Judgment on the Pleadings" as to plaintiffs' § 1981 claims. Defendants argued that this court should either dismiss plaintiffs' § 1981 claims or grant judgment in favor of defendants on these claims because "42 U.S.C. § 1983 [which plaintiffs had not pled] is the exclusive federal remedy for violation by a state governmental entity of rights guaranteed under 42 U.S.C. § 1981." Defendants did not explain their failure to meet the April 22, 1999 scheduling order deadline for dispositive motions but simply argued that they were entitled to judgment as a matter of law.
The very next day, on August 6, 1999, plaintiffs filed a "Motion and Brief of Plaintiff [sic] and Intervenors for Leave to Amend Their Complaints that They are Seeking Remedy Under 42 U.S.C. § 1983[sic]." In this motion, plaintiffs' again invoked Rule 15(a) and requested leave to file an amended complaint adding claims under 42 U.S.C. § 1983 after the February 1, 1999 scheduling order deadline for amendments to the pleadings. Plaintiffs argued that leave to amend should be granted because the § 1983 claims were "inadvertently omitted" from their original complaints and because the amendments would not prejudice the defendants.
II. DISCUSSION
A. Plaintiffs' Motions to Amend
In support of their motions for leave to amend their complaints after the February 1, 1999 deadline established by this court's Rule 16(b) Scheduling Order, plaintiffs focus upon the liberal amendment standard set forth in Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) contemplates that leave to amend shall be freely given unless there is undue delay, dilatory motive or prejudice to the opposing party. See Halliburton & Assoc., Inc. v. Henderson, Few & Co., 774 F.2d 441, 443 (11th Cir.1985). Plaintiffs argue that leave to amend should be granted because their proposed amendments have no dilatory motive and would not prejudice the defendants or cause undue delay. Defendants counter that the several-month delay in seeking leave to file the amendments was indeed "undue," that a dilatory motive may be presumed from this delay, and that defendants would be prejudiced by this delay if leave to amend were granted.
Had plaintiffs sought leave to amend their complaints before the scheduling order deadline, the court would resolve these Rule 15(a) issues. However, where a party seeks leave to amend after a scheduling order deadline, that party must first demonstrate "good cause" under Rule 16(b) of the Federal Rules of Civil Procedure before the court can consider whether *1269 the proposed amendments are proper under Rule 15(a). See Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir.1998). Otherwise, scheduling order deadlines would be "meaningless" and the good cause requirement articulated by Rule 16(b) would effectively be read out of the Federal Rules of Civil Procedure. See id. at 1419.
Notwithstanding this good cause requirement under Rule 16(b), plaintiffs neither cite Rule 16(b) in their motions nor offer any good cause for filing their proposed amendments after the scheduling order deadline. Indeed, plaintiffs admit that no facts have changed since their original complaints were filed. Thus, it is clear that plaintiffs could have included the Title VII and § 1983 claims in their original complaints, particularly since they had ample opportunity to research the law and file their proposed amendments before the scheduling order deadline.
The court therefore finds that plaintiffs' failure to amend their complaints prior to the February 1, 1999 scheduling order deadline was the result of a lack of diligence in pursuing their claims. As a result, plaintiffs have failed to demonstrate that their failure to comply with the scheduling order deadline was supported by good cause as required by Rule 16(b). See Sosa, 133 F.3d at 1418 (stating that good cause standard articulated by Rule 16(b) precludes modification of a scheduling order deadline unless it cannot "be met despite the diligence of the party seeking the extension"). Accordingly, plaintiffs' motions for leave to amend their complaints to add claims under Title VII and 42 U.S.C. § 1983 are due to be denied.
B. Defendants' Motion to Dismiss
Having determined that plaintiffs failed to show the good cause necessary to amend their complaints after the scheduling order deadline, the court turns to the issue of whether defendants' motion to dismiss plaintiffs' § 1981 claims should be granted.[7] In Jett v. Dallas Independent School District, 491 U.S. 701, 731, 109 S.Ct. 2702, 2722-23, 105 L.Ed.2d 598 (1989), the Supreme Court held that § 1983 is the exclusive federal damages remedy for violations by a state actor of rights protected by § 1981. Thus, where, as here, a state employee seeks damages for a state employer's violation of rights protected by § 1981, Jett mandates that the state employee must pursue that claim under § 1983.[8] Accordingly, because plaintiffs *1270 did not invoke § 1983 in their complaints, the court concludes that their § 1981 claims are due to be dismissed.[9]See Ebrahimi v. City of Huntsville Bd. of Educ., 905 F.Supp. 993, 995 (M.D.Ala.1995) (dismissing school employee's § 1981 claim against school board for failure to invoke § 1983).
C. Defendants' Motion for Summary Judgment
The sole issue remaining in this case is whether defendants are entitled to summary judgment as to plaintiff Anderson's surviving Title VII claim. After carefully reviewing the law and considering the submissions of the parties, it is the opinion of the court that genuine issues of material fact exist as to this claim. The court therefore concludes that defendants' motion for summary judgment is due to be denied.
III. CONCLUSION
Plaintiffs' motions for leave to amend their complaints to add claims under Title VII and 42 U.S.C. § 1983 are DENIED. Defendants' motion to dismiss plaintiffs' § 1981 claims is GRANTED. These claims are DISMISSED WITH PREJUDICE. Accordingly, because the only claims asserted by plaintiff-intervenors Aquanita Jackson, Edna McCoy and Daisy Brown are § 1981 causes of action, these plaintiff-intervenors are DISMISSED from this action. Defendants' motion for summary judgment is DENIED.
NOTES
[1] See plaintiff-intervenors' "Motion and Brief for Leave to Amend Intervenors' Complaint to Add Claims Under Title VII Based Upon the Same Factual Allegations" (Doc. 36); "Defendants' Brief in Opposition to Intervenors' Complaint to Add Claims under Title VII" (Doc. 42); plaintiff-intervenors' "Further Response in Support of Their Motion to Amend Complaint" (Doc. 45); and the "Motion and Brief of Plaintiff [sic] and Intervenors for Leave to Amend Their Complaints that They are Seeking Remedy Under 42 USC § 1983[sic]" (Doc. 54).
[2] See defendants' "Motion to Dismiss or, in the Alternative, Motion for Judgment on the Pleadings" (Doc. 52) and supporting memorandum (Doc. 53); and "Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss or in the Alternative Motion for Judgment on the Pleadings" (Doc. 58).
[3] See defendants' "Motion for Summary Judgment" (Doc. 31) and supporting memorandum (Doc. 32); "Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment" (Doc. 39); defendants' "Supplemental Brief in Support of Motion for Summary Judgment" (Doc. 50); and "Intervenors' Response to Defendant's [sic] Supplemental Brief insupport [sic] of Motion for Summary Judgment" (Doc. 56).
[4] Because Superintendent Sousa was sued in his official capacity, his successor, Dr. Harold W. Dodge, was automatically substituted as a defendant. See Fed.R.Civ.P. 25(d)(1).
[5] A copy of Anderson's right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") was attached to her complaint.
[6] There were no EEOC right-to-sue letters attached to this motion.
[7] Plaintiffs argue with some force that this court should not consider defendants' motion to dismiss because it was filed several months after the April 22, 1999 scheduling order deadline for dispositive motions. Plaintiffs basically contend that if the court is not going to relax the scheduling order deadline for their motions to amend, it should not relax the scheduling order deadline for defendants' motion to dismiss. The court is not unsympathetic to the argument that the scheduling order deadlines should be applied equally in this case. Nonetheless, as explained below, the court concludes that plaintiffs' § 1981 claims are due to be dismissed (whether upon defendants' motion or sua sponte by the court) because, simply put, plaintiffs' causes of action under § 1981 fail to state triable claims upon which relief can be granted.
[8] The court is aware that some disagreement exists as to whether the Civil Rights Act of 1991, through the addition of subsection (c) to § 1981, overrules Jett. Compare Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir.1995) (1991 Act did not overrule Jett) with Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir.1996) (1991 Act overruled Jett and allows a direct cause of action under § 1981 against state actors). Although the Eleventh Circuit has not explicitly addressed this issue, several district courts within this Circuit have held that § 1981(c) does not overrule Jett. See Villanueva v. City of Fort Pierce, 24 F.Supp.2d 1364, 1368 (S.D.Fla.1998); Reynolds v. Glynn County Bd. of Educ., 968 F.Supp. 696, 707 (S.D.Ga.1996); Ebrahimi v. City of Huntsville Bd. of Educ., 905 F.Supp. 993, 994-95 (N.D.Ala.1995); Johnson v. City of Fort Lauderdale, 903 F.Supp. 1520, 1523 (S.D.Fla. 1995), aff'd on other grounds, 148 F.3d 1228 (11th Cir.1998). This court agrees and accordingly holds that the addition of subsection(c) to § 1981 by the Civil Rights Act of 1991 did not overrule the holding in Jett that § 1983 is the exclusive remedy for a state actor's violation of rights protected by § 1981.
[9] Consequently, because plaintiff-intervenors only assert § 1981 causes of action, these parties are due to be dismissed from this case.
|
376 S.C. 640 (2008)
659 S.E.2d 100
In the Matter of James M. WILLIAMS, III, Respondent.
No. 26441.
Supreme Court of South Carolina.
Submitted January 29, 2008.
Refiled March 10, 2008.
*641 Lesley M. Coggiola, Disciplinary Counsel, and Barbara M. Seymour, Assistant Deputy Disciplinary Counsel, both of Columbia, for the Office of Disciplinary Counsel.
Larry C. Brandt, of Larry C. Brandt, PA, of Walhalla, for respondent.
PER CURIAM.
In this attorney disciplinary matter, respondent[1] and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to any sanction in Rule 7(b), RLDE, Rule 413, SCACR. We accept the agreement and disbar respondent from the practice of law in this state.[2] The facts, as set forth in the agreement, are as follows.
FACTS
Since the late 1980s, respondent represented Client and his wife on a variety of legal matters. Presently, Client is an elderly man residing in a retirement community. Client's wife resided in the same facility until her death in November 2002.
Respondent drafted durable powers of attorney for Client and his wife. In each of the documents, respondent was named attorney-in-fact. The durable powers of attorney *642 drafted by respondent contained a provision that respondent, as attorney-in-fact, had authority to "deal with Attorney in Attorney's individual, or any fiduciary capacity in buying and selling assets, and lending and borrowing money, and in all other transactions irrespective of the occupancy by the same person of dual positions."
Respondent's representation of Client and his wife in the preparation and execution of the durable powers of attorney and the naming of respondent as attorney-in-fact presented a conflict of interest. Respondent did not advise Client and his wife of this conflict of interest.
Respondent admits misappropriating more than 8400,000 from Client's personal assets for his own use and benefit by executing documents, checks, etc., as Client's attorney-in-fact. Further, respondent borrowed money from Client without obtaining his informed consent to the conflict of interest the transactions presented. Respondent failed to reduce the terms of Client's loans to respondent to writing in the form and with the substance required by the Rules of Professional Conduct.
Client initiated a civil action against respondent. Respondent settled the suit, in part by agreeing to pay restitution.
Respondent pled guilty to one count of exploitation of a vulnerable adult. He was sentenced to eighteen (18) months under house arrest.
LAW
Respondent admits that, by his misconduct, he has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.8(a) (lawyer shall not enter into business transaction with a client unless terms are fair and disclosed, client is given opportunity to seek advice of independent counsel, and client consents in writing); Rule 1.15 (lawyer shall hold property of client separate from lawyer's own property); Rule 8.4(b) (lawyer shall not commit criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects); Rule 8.4(c) (lawyer shall not commit criminal act involving moral turpitude); Rule 8.4(d) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule *643 8.4(e) (lawyer shall not engage in conduct that is prejudicial to the administration of justice).
Respondent further admits his misconduct is grounds for discipline under Rule 7, RLDE, of Rule 413, SCACR, specifically Rule 7(a)(5) (it shall be ground for discipline for lawyer to engage in conduct tending to pollute administration of justice, bring courts or legal profession into disrepute, or conduct demonstrating an unfitness to practice law) and Rule 7(a)(6) (it shall be ground for discipline for lawyer to violate the oath of office taken upon admission to practice law in this state).
CONCLUSION
We accept the Agreement for Discipline by Consent and disbar respondent. Within fifteen (15) days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that he has complied with Rule 30 of Rule 413, SCACR, and shall also surrender his Certificate of Admission to the Practice of Law to the Clerk of Court.
DISBARRED.
TOAL, C.J., MOORE, WALLER, PLEICONES and BEATTY, JJ., concur.
NOTES
[1] Respondent was admitted to practice law in this State in 1978. While he practiced law in Clemson, South Carolina, for most of his career, respondent was practicing law at 125 Bram Cat Alley in Seneca when he was placed on incapacity inactive status on August 8, 2007.
We are aware that there is another attorney with a very similar name who has practiced law in Seneca for his entire career, James L. Williams. This attorney practices law at 107 North Fairplay in Seneca, and he has no involvement in this matter and is a member in good standing with the South Carolina Bar.
[2] While the agreement was pending before the Court, respondent submitted a letter requesting permission to resign from the Bar. The request is denied.
|
976 F.2d 744
Skinnerv.Slater***
NO. 91-9046
United States Court of Appeals,Eleventh Circuit.
Sept 22, 1992
1
Appeal From: M.D.Ga.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
|
In the United States Court of Federal Claims
No. 11-129C
(Filed: May 15, 2015)
************************************
*
H.J. LYNESS CONSTRUCTION, INC., *
* Cross-Motions For Summary Judgment
Plaintiff, * On Damages
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
************************************
OPINION AND ORDER
DAMICH, Senior Judge:
Plaintiff, H.J. Lyness Construction, Inc. (“HJL”), seeks damages stemming from the
termination for convenience by the General Services Administration (“GSA”) of HJL’s contract
to renovate and provide security improvements to the lobby of a federal building in Cincinnati,
Ohio. Previously, this Court determined that Plaintiff’s claims for its settlement costs were not
barred. Defendant then conceded liability. The case is now before the Court on the issue of
damages. For the reasons set forth below, Defendant’s Motion for Summary Judgment is
granted with correction for a clerical error.
I. Facts
On August 15, 2006, HJL entered into Contract No. GS05P06SLC3014 with GSA.
Compl. at ¶ 2. The contract was a firm-fixed price contract in the amount of $1,830,000 for
lobby renovations and security improvements to the John Weld Peck Federal Building in
Cincinnati, Ohio. Id. The performance bond, certificate of insurance and security clearances
were thereafter reviewed and approved by GSA and on November 9, 2006, GSA issued the
initial notice to proceed (“NTP”). Appendix to the Defendant's Cross-Motion for Summary
Judgment and Response to Plaintiff's Motion for Partial Summary Judgment ("DA") 5.
However, the NTP was rescinded by GSA on November 16, 2006, due to issues with the fire
evacuation plan associated with the contract design. DA 159. The parties agree that in the brief
period of time between when the NTP was issued and when it was rescinded, no performance of
1
the contract occurred. 1 Affidavit of Carl P. Meglan at 6. The contract was ultimately terminated
for convenience on April 6, 2009. DA 65-68.
In connection to the termination for convenience, on April 10, 2009, HJL requested the
settlement proposal form which was transmitted to HJL eighteen days later. DA 69-70. On
February 24, 2010, HJL contacted GSA and again requested the settlement proposal form. Even
though the contracting officer had stated that she would not consider HJL's settlement proposal,
on March 17, 2010, HJL submitted it. DA 85-90. In the settlement proposal, HJL requested
$563,792 as settlement for the termination for convenience. DA 87. HJL then resubmitted the
termination settlement proposal to the contracting officer as a certified claim. DA 82-90. Sixty
days passed following HJL's claim submission without a final decision from the contracting
officer. HJL then filed this suit seeking the amount of $563,792 that it had set forth in its
settlement proposal. See generally Compl. After the filing of the Complaint, the Inspector
General's office of the GSA conducted a multi-day onsite audit of HJL's settlement proposal.
DA 155-170. The audit noted several discrepancies in HJL’s proposed numbers and concluded
that HJL was actually due $30,180.59. Id.
II. Procedural History
The parties have filed cross-motions for summary judgment. This Court has previously
issued an Opinion in this case, holding that Plaintiff’s claims were not barred by a May 6, 2009
release because the parties’ course of conduct created a genuine issue of material fact on the
matter. See H.J. Lyness Construction, Inc. v. United States, 2015 U.S. Claims LEXIS 16 (Fed.
Cl. Jan. 21, 2015). The Court therefore denied-in-part Defendant’s Motion, and ordered that
Plaintiff’s Motion be held in abeyance until liability was established. Id. The Court also ordered
the parties to file a Joint Status Report outlining the next steps to be taken in the litigation, as the
issues of liability and damages had yet to be determined. Id.
Following this opinion, the parties filed a Joint Status Report (“JSR”). In the JSR,
Defendant stated that it had “decided to waive any further argument concerning the release and
will concede liability in this case.” JSR at 1. Furthermore, “the parties respectfully request that
the Court decide the issues concerning damages that were raised in the parties’ cross-motions for
summary judgment, enter an order deciding any material facts pursuant to RCFC 56(g), or take
any other action that the Court deems proper.” Id. The issue remaining before the Court is the
amount of damages owed to Plaintiff. Plaintiff avers that it is owed $563,792.00, the full amount
asked for in the settlement proposal. Defendant, on the other hand, contends that the GSA
properly corrected amount owed to HJL as a result of the audit, and that $30,180.59 is the proper
amount.
III. Legal Standards
A motion for summary judgment will be granted only if “there is no genuine issue as to
any material fact and . . . the movant is entitled to judgment as a matter of law.” RCFC 56
1
During the delay, HJL performed work for GSA as a result of change orders issued by GSA. For a full discussion
of this work, see H.J. Lyness Construction, Inc. v. United States, 2015 U.S. Claims LEXIS 16 (Fed. Cl. Jan. 21,
2015). This work, however, was not part of the base contract that is at the heart of the instant case.
2
(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering a summary
judgment motion, the court’s proper role is not to “weigh the evidence and determine the truth of
the matter,” but rather “to determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it “might affect the
outcome” of the suit; a dispute is genuine if the evidence is such that a reasonable trier of fact
could find for the nonmoving party. Id. at 248. Pursuant to RCFC 56(g), “[i]f the court does not
grant all the relief requested by the motion, it may enter an order stating any material fact –
including an item of damages or other relief – that is not genuinely in dispute and treating the
fact as established in the case.”
The party moving for summary judgment may prevail by demonstrating via the pleadings
or other materials in the record (such as depositions, documents, affidavits or declarations,
stipulations, admissions, interrogatory answers, etc.) the absence of any genuine issues of
material fact or by showing the absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 322-23. If the moving party makes such a showing, the burden shifts to the
nonmoving party to demonstrate that there is a genuine issue of material fact. Id. at 324. Any
inferences that may be drawn from the underlying facts “must be viewed in the light most
favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). Similarly, “[i]n cases in which there is doubt as to the existence of a genuine issue of
material fact, that doubt must be resolved in favor of the nonmovant.” Cooper v. Ford Motor
Co., 748 F.2d 677, 679 (Fed. Cir. 1984).
IV. Discussion
Because the Defendant has conceded liability, the only issue remaining before the Court
is the amount of damages that Plaintiff should receive from the termination for convenience. In
its Motion, Defendant has provided a table breaking down the total amount sought by Plaintiff
into various categories, showing where the parties are in disagreement – that table is as follows:
Cost Element HJL’s Settlement Proposal Adjusted Amount From
(A87) Audit (A164-68)
Direct Material Costs $72,864.00 $72,768.39
Direct Labor Costs $10,382.00 $8,502.53
Other Costs $96,762.00 $33,222.50
General and Administrative $422,830.00 $15,983.28
Expenses
Total Costs $602,838.00 $130,476.70
Profit $60,284.00 $13,047.67
Subtotal $663,122.00 $143,524.37
Settlements with $14,014.00 $0
Subcontractors
Net Amount $677,136.00 $143,524.37
Payments Made By GSA $113,344.00 $113,343.78
Total Amount Due To HJL $563,792.00 $30,180.59
3
There is a discrepancy in seven of the cost elements listed: direct materials, direct labor, other
costs, general and administrative costs, profit, settlements with subcontractors, and payments
made by GSA. The Court shall turn to each cost individually in order to ascertain the correct
amount owed to HJL.
A. Direct Materials
In its settlement proposal, HJL sought $72,864.00 in costs for direct materials. Pl.’s Mot.
at 3. After performing its audit, GSA concluded that the proper amount should be $72,768.29.
Def.’s Mot. at 7. The discrepancy of $95.61 was because that amount was incurred after the date
of the termination for convenience and is therefore not compensable pursuant to FAR 49.206-
2(b)(2). Id. In its Response and Reply, Plaintiff argues that Defendant has failed to point to a
specific part of the record to support its position that the $95.61 was incurred after the contract
termination date. Pl’s Response and Reply at 4. However, as Defendant notes, the appendix
shows a direct cost for certified mail of $95.87 2 incurred by Plaintiff on April 14, 2009, eight
days after the contract was terminated. DA 204. The Court concludes that this cost was properly
reduced by GSA and that the correct amount owed to Plaintiff for direct materials is $72,768.13.
B. Direct Labor
In its settlement proposal, HJL sought $10,382.00 in costs for direct labor. Pl.’s Mot. at
3. After performing its audit, GSA concluded that the proper amount should be $8,502.53. Id.
The amount $1,879.47 was excluded due to HJL counting its fringe benefits expense twice, as
both a direct labor cost and an indirect (general and administrative) expense. Def.’s Mot. at 7.
GSA acknowledged that fringe benefits are an allowable expense but that because HJL had
charged that expense indirectly, it could not charge that expense directly to the project. DA 164-
165. Plaintiff does not disagree that it accounted for the costs as indirect costs; rather, Plaintiff
argues that it should be allowed to recover this cost because it can be directly traced to the base
contract between HJL and GSA. Pl.’s Reply and Response at 5-6.
The Court concludes that the fringe benefits expense of $1,879.47 was properly excluded
by GSA in the audit. Plaintiff cites Orlosky Inc. v. United States, 68 Fed. Cl. 296, 314, for the
proposition that “costs that can be directly traced to a specific contract can be recovered if
otherwise proven, regardless of how a contractor accounts for the same in its financial statements
or records.” Pl.’s Mot. at 4. However, nothing in Orlosky can be fairly interpreted as supporting
the reading that Plaintiff now advances before the Court. Indeed, Orlosky is entirely silent on the
issue of whether costs can be recovered if they can be directly traced and otherwise proven
regardless of how they are accounted for by a contractor.
The Court agrees with Defendant that allowing Plaintiff to now recover the fringe
benefits expense as a direct labor cost would result in a double recovery. Def.’s Mot. at 16.
When Plaintiff made the accounting decision to classify the fringe benefits expense as an indirect
cost, it lost the ability to recover it later as a direct cost. By accounting for the fringe benefits as
an indirect expense, that expense has already been incorporated into the rest of Plaintiff’s
2
Defendant notes that although the actual amount is $95.87, due to an administrative error, the incorrect number of
$95.61 was input. Def’s Reply at 5.
4
indirect expenses and proportionally allocated among its other contracts, along with all other
expenses accounted for as indirect expenses. This means that part of this cost has already been
charged to Plaintiff’s other contracts as an indirect expense. To now allow Plaintiff to recover
this amount as a direct expense would lead to a situation where Plaintiff has overcharged its
other contracts for its indirect expenses – in other words, it would allow Plaintiff to recover more
than the actual cost itself. Thus, the Court concludes that GSA properly disallowed the fringe
benefit expense. Plaintiff is entitled to $8,502.53 for direct labor costs. To the extent that
Plaintiff can recover the share of indirect expenses unabsorbed by this contract, that amount is
covered infra in Section D of this opinion.
C. Other Costs
In its settlement proposal, HJL sought $96,762.00 in other costs. This amount contains
three components: $17,000.00 paid to Automatic Control Systems, Inc. as a deposit for security
equipment, $16,222.50 paid to Wernke Welding & Steel for structural steel shop drawings, and
$63,539.44 paid to Meglan, Meglan, and Company, Limited (“Meglan”), who assisted HJL with
preparation of the requests for equitable adjustments and the termination settlement proposal.
DA 165. After performing its audit, GSA did not dispute the first two amounts but found that the
third amount was accounted for elsewhere by HJL as an indirect (general and administrative)
expense. Id. at 8. GSA acknowledged that although this cost is an allowable expense, because
HJL had charged the Meglan expense indirectly, it could not also charge that expense directly to
the project. DA 165. As with the direct labor costs, Plaintiff does not dispute that it accounted
for the Meglan expense as an indirect cost. Plaintiff advances the same argument: that it should
be entitled to recover this expense regardless of how it was classified and accounted for because
it can be directly traced to the contract.
For the same reasons discussed supra in Section B, the Court concludes that GSA
properly disallowed the $63,539.44 paid to Meglan because it has been accounted as an indirect
expense. Accounting for this expense as an indirect expense has allowed Plaintiff to allocate it
proportionally among its other contracts. Allowing Plaintiff to recover the expense directly now,
in its entirety, would result in a double recovery for Plaintiff. Therefore, the Court holds that
Plaintiff is entitled to $33,222.50 in other costs.
D. General and Administrative
By far the largest amount sought by HJL relates to General and Administrative expenses,
specifically unabsorbed overhead. 3 HJL seeks $422,830.00 in unabsorbed overhead relating to
the delay. Pl.’s Mot. at 5. Plaintiff arrived at this number using a formula created specifically
for this case by Carl Meglan, who also serves as Plaintiff’s expert witness. In its audit, GSA
3
Unabsorbed overhead is an indirect cost that has been described by the United States Court of Appeals for the
Federal Circuit thusly: “Indirect costs include such things as home office overhead, defined as costs that are
expended for the benefit of the whole business, which by their nature cannot be attributed or charged to any
particular contract. Generally a contractor recovers these indirect costs by allocating a proportionate share to each
of its contracts. However, when the government causes a delay or suspension of performance, this decreases the
stream of direct costs against which to assess a percentage rate for reimbursement. In such a situation, a portion of
the home office overhead is ‘unabsorbed.’” Nicon, Inc. v. United States, 331 F.3d 878, 882 (Fed. Cir. 2003)
(internal citations and quotation marks omitted).
5
rejected this calculation as “unsupportable” and “not based on any method approved under the
case law” while noting the calculations contained various flaws, including not taking into
consideration that “overhead expenses would have increased if HJL actually performed the
contract work, HJL revenues showed no indication of being adversely influenced by the alleged
‘hold’ period, . . . and HJL’s overhead rate also showed no pattern of being adversely influenced
. . . .” Def.’s Mot. at 9. Instead, GSA’s auditors determined that the appropriate amount is
$15,983.28. Id. Unsurprisingly, Plaintiff does not agree with this reduction and believes the
original amount it submitted to be proper because it argues that it meets the criteria for recovery
of unabsorbed overhead and that the formula used to calculate the amount is fair and reasonable.
Pl.’s Mot. at 8.
The Federal Circuit has held that there is only one proper method of calculating
unabsorbed home office overhead: the Eichleay formula, originally set forth in Eichleay Corp.,
60-2 B.C.A. (CCH) P 2688, at 13,568 (ASBCA July 29, 1960). See Wickham Contracting Co v.
Fischer, 12 F.3d 1574, 1575 (Fed. Cir. 1994); see also Melka Marine Inc. v. United States, 187
F.3d 1370, 1374-75 (Fed. Cir. 1999). Before the Eichleay formula can be applied, a contractor
must meet three strict prerequisites: (1) There must have been a government-caused delay of
uncertain duration; (2) the contractor must show that the delay extended the original time for
performance or that, even though the contract was finished within the required time period, the
contractor incurred additional costs because he had planned to finish earlier; and (3) the
contractor must have been on standby and unable to take on other work during the delay period.
Nicon, 331 F.3d at 883. Additionally, the Eichleay formula can only be applied in a factual
situation where performance on a contract has begun – it is not applicable to a situation in which
the contract is terminated before the commencement of performance. Id. at 886.
Plaintiff concedes that the Eichleay formula cannot be used to calculate its unabsorbed
overhead because performance of the contract had never started – GSA rescinded the notice to
proceed before Plaintiff could begin performance, and this delay continued until the termination
of the contract for convenience. Def.’s Mot. at 5. However, Plaintiff relies upon the narrow
holding of Nicon Inc. v. United States for the proposition that its own formula should be allowed
for calculating the unabsorbed overhead expense. 331 F.3d 878 (Fed. Cir. 2003). In Nicon, the
plaintiff sought damages for unabsorbed overhead where performance had never commenced
before the contract was terminated for convenience by the government. 331 F.3d at 881. The
court held that “the Eichleay formula as it is set forth in our precedent is the exclusive formula
for the calculation of damages for unabsorbed overhead due to a period of government-caused
delay in situations where performance has begun” and that the formula “must be strictly applied
and may not be modified to make it apply to situations in which there is no performance on the
contract.” Id. at 888. However, the court also held that in situations in which contract
performance has not yet begun, a contractor “may recover unabsorbed overhead costs as part of
its termination for convenience settlement if a reasonable method of allocation can be
determined on the facts of the case and the contractor can otherwise satisfy the strict
prerequisites for recovery of unabsorbed overhead costs.” Id. These strict prerequisites are the
same ones a contractor must meet in order to use the Eichleay formula. Id. at 887.
In the instant case, the Court finds that it need not determine whether Plaintiff’s proposed
formula for calculating unabsorbed overhead is reasonable because Plaintiff has not met the strict
6
prerequisites for recovery of unabsorbed overhead. As stated above, Plaintiff must show that (1)
there was a government-caused delay; (2) the delay extended the period of performance beyond
what was originally anticipated; and (3) that Plaintiff was required to remain on standby during
the period of delay. Defendant concedes that the first two requirements have been met but
argues that Plaintiff cannot meet the third requirement because it was not required to remain on
standby during the delay. Def.’s Mot. at 19.
When determining whether a contractor was on standby during a period of delay, the
court first determines “whether the CO [] issued a written order that [1] suspend[ed] all the work
on the contract for an uncertain duration and [2] require[d] the contractor to remain ready to
resume work immediately or on short notice. P.J. Dick, Inc. v. Principi, 324 F.3d 1364, 1371
(Fed. Cir. 2003). If those two conditions are met, the contractor need not offer further proof of
standby; otherwise, the contractor must demonstrate standby through indirect evidence. Id. The
requirement to remain on standby is a demanding one; if a contractor is not required to return to
work at full speed and/or full strength, the standard for remaining on standby is not met. Id. The
contractor “must be required to keep at least some of its workers and necessary equipment at the
site, even if idle, ready to resume work on the contract (i.e., doing nothing or working on
something elsewhere that allows them to get back to the contract sight on short notice). Id.
Furthermore, the Court of Federal Claims has previously held that “[a] contractor cannot
be said to have personnel and equipment available to perform ‘immediately and at full speed’
when it makes extensive use of subcontractors and cannot guarantee the availability of those
subcontractors.” Redland Co. v. United States, 97 Fed. Cl. 736, 750 (Fed. Cl. 2011). In Redland
Co., the court, considering cross motions for summary judgment, found that the plaintiff “relied
on subcontractors to perform a majority, if not the entirety, of the [] work.” Id. The court further
determined that plaintiff could not guarantee the availability of its subcontractors to return to
work immediately and at full strength because, inter alia, plaintiff had not even entered into a
contract with one of its prime subcontractors. Id. Thus, plaintiff could not meet the strict
requirements of being on standby because “[p]laintiff’s ability to start work immediately and at
full speed thus depended no less critically on the availability of plaintiff’s subcontractors than it
did on the availability of plaintiff’s own personnel and equipment” and could not recover
damages for unabsorbed overhead. Id.
Plaintiff has not proffered any evidence that directly proves it was required to remain on
standby – there is no written order by a contracting officer requiring Plaintiff to remain ready to
resume work immediately or on short notice. Thus, Plaintiff must prove standby by indirect
evidence. P.J Dick, 324 F.3d at 1371.
The Court finds that Plaintiff, like the plaintiff in Redland Co. cannot be considered to
have been on standby because Plaintiff has offered little in the way of indirect evidence to
suggest it was required to remain on standby by the government. Plaintiff has only submitted
one piece of evidence to prove that it was on standby: the deposition of Erica Bradbury, the GSA
contracting officer assigned to the contract. In that deposition, the following exchange occurred:
7
Q. (Plaintiff’s Counsel) Well, in any event, during the time that this problem
was going on, Lyness was on standby to begin work on the base contract,
weren’t they?
A. (Ms. Bradbury) Yes.
Deposition of Erica Bradbury at 22. Aside from that exchange, there is nothing to suggest that
Plaintiff was required to remain on standby. For instance, Plaintiff has not produced any
evidence that it kept workers and equipment at the site ready to commence performance on the
contract, or any depositions of its employees to that effect. Furthermore, Ms. Bradbury was not
the contracting officer assigned to the contract at the time the delay started. Affidavit of Harry J.
Lyness, Exhibit Q. Ms. Bradbury was not assigned to the contract until August 12, 2008, nearly
two years after the initial NTP was issued and rescinded. Id. Thus she is not the individual who
would have placed Plaintiff on standby when the delay commenced. When asked other
questions about the specifics of the base contract, Ms. Bradbury frequently responded that she
did not know the answer. For example, Ms. Bradbury was unaware if HJL had ever been issued
a notice to proceed, she was unaware of the status of the project at the time she came on, or why
HJL was eventually terminated for convenience. The Court concludes that, standing alone, this
testimony is not sufficient to prove that Plaintiff was required to remain on standby during the
delay, especially considering that the requirement to remain on standby is a demanding one.
Additionally, Plaintiff intended to rely on subcontracts to provide the vast majority of the
value associated with the contract. In a cost estimate sheet prepared by Plaintiff, Plaintiff
estimated that the entire cost of the project would be $1,708,803.00 4, of which $1,519,325.00
would come from subcontractors, with the remaining costs consisting of estimated labor and
material costs of HJL. DA 92. Clearly, Plaintiff intended to make extensive use of
subcontractors in order to provide a majority of the contract’s value. However, Plaintiff offers
no evidence to suggest that it could guarantee the availability of its subcontractors or their ability
to perform upon the contract immediately and at full strength. It is not apparent that Plaintiff had
entered into a contract with all of the subcontractors required to resume work at full speed, or
whether Plaintiff communicated with its subcontractors on the need to remain on standby
themselves in order to assure performance on the base contract could be started immediately
once the delay had ceased. With such a large portion of the work to be completed by
subcontractors and no evidence to suggest that Plaintiff had the ability to resume work on the
contract immediately and at full strength, the Court concludes that Plaintiff was not on standby.
Accordingly, “plaintiff has failed to satisfy the strict prerequisites for recovery of unabsorbed
overhead costs because it was not on standby during the period of delay.” Redland Co., 97 Fed.
Cl. at 751 (internal quotation marks and citations omitted).
Nevertheless, Plaintiff will not be left without any compensation in this area. Although
the GSA audit disallowed the entirety of Plaintiff’s proposed general and administrative costs,
the audit determined that Plaintiff is entitled to expenses based upon a G&A rate applied to its
proposed direct costs. DA 167. GSA examined Plaintiff’s fiscal years ended December 31,
2006, though December 31, 2009 (the fiscal years in which Plaintiff was affected by the contract
delay), and determined that a weighted average G&A rate of 13.96 percent would be appropriate.
4
The actual value of the contract awarded to Plaintiff was $1,830,000.
8
Id. GSA then applied that number to the audit adjusted numbers of Plaintiff’s direct costs and
arrived at a proposed amount of $15,983.28. 5 However, as noted above, due to a clerical error,
the wrong amount for Direct Materials was computed. Using the correct amount, the Court finds
that Plaintiff is owed $15,983.24. This amount shall be used by the Court in the final calculation
for damages.
E. Settlements With Subcontractors
Plaintiff seeks $14,014.00 owing to settlement agreements it entered into with three
subcontractors. 6 Pl.’s Mot. at 4. In its audit, GSA concluded that because HJL failed to adhere
to FAR Part 49, regarding termination of contracts and settlements with subcontractors, it could
not recover this amount. Def.’s Mot. at 10. Specifically, the GSA found that HJL failed to
provide (1) adequate accounting information to support the amounts negotiated with its
subcontractors; (2) support showing Lyness submitted the subcontractor settlement agreements
to the contracting officer for approval; (3) written and signed settlement agreements with its
subcontractors; and (4) proof of payment or accounting data showing a liability of these
settlements. DA 168.
FAR 49.108-3 is the regulation that governs the settlement procedure between a prime
contractor and its subcontractors. It requires, inter alia, that each settlement must “be supported
by accounting data and other information sufficient for adequate review” and that a prime
contract must “submit, for approval or ratification, all termination settlements with
subcontractors.” FAR 49.108-3.
Plaintiff has provided no evidence to suggest that the required documentation was ever
submitted to GSA. Rather, it appears that Plaintiff merely submitted invoices that it received
from the three subcontractors, which GSA considered during the audit. DA 168. Plaintiff has
included these invoices as part of the affidavit of Harry J. Lyness, submitted on August 8, 2014.
The affidavit also notes that, regarding each invoice, Plaintiff communicated its acceptance of
the demand for payment to each subcontractor. Affidavit of Harry J. Lyness, ¶7-9. However,
no communication to the subcontractors indicating acceptance and payment of the settlement has
been included, nor has any formal documentation, such as a settlement agreement signed by both
Plaintiff and its subcontractor. It is clear from the record before the Court that Plaintiff did not
follow the proper settlement procedure, as required by FAR 49.108-3. The documentation
submitted to GSA at the time of the audit was insufficient to support the award of subcontractor
settlement costs, and Plaintiff has failed to provide the Court with any additional documentation
that could supplement the record on the issue. Therefore, the Court holds that GSA properly
denied the costs associated with subcontractor settlements.
F. Profit
5
($72,768.39 (Direct Materials) + $8,502.53 (Direct Labor) + $33,222.50 (Other Costs)) * 0.1396 = $15,983.28.
6
This number is the sum of the following: a $1,500.00 settlement with Siemering Tile Co., Inc., a $7,324.00
settlement with McCool Plaster & Drywall, Inc., and a $5,190.00 settlement with Trebor Electrical Contractors. DA
168. GSA adjusted each amount to $0.00 in its audit.
9
In its settlement proposal to GSA, Plaintiff proposed a profit amount of $60,284.00. DA
167-168. Plaintiff arrived at this number by applying a profit rate of 10% to all of its direct costs
as well as its general and administrative expenses. Compl. Exhibit B. In the audit, GSA
accepted Plaintiff’s proposed profit rate of 10%, but found the correct amount should be
$13,047.67. DA 168. Defendant notes that the difference in profit amount reflects the
disagreement over the cost total to which the 10% rate should be applied. Def.’s Mot. at 10.
Nowhere in Plaintiff’s Motion for Summary Judgment or its Response and Reply does it make
any argument that this adjustment in profit cost total was improper. However, because Plaintiff’s
proposed profit amount is based on the sum of two other submitted amounts which are in
dispute, the Court shall assume that Plaintiff intended to object to this amount and that the lack
of inclusion is the result of a mere oversight.
Because the Court has determined that GSA properly disallowed portions of both direct
costs and general and administrative expenses, supra Sections A, B, and D, the Court finds that
the 10% profit rate should be applied to the amount of $130,476.40. 7 This yields a profit amount
of $13,047.64. This amount shall be used by the Court in its calculation for total damages.
G. Payments Made by GSA
In its settlement proposal, Plaintiff reduced its proposed amount by the payments it
received from GSA for work performed in connection with various change orders that were at
the heart of the Court’s previous opinion in this case. See H.J. Lyness, 2015 U.S. Claims LEXIS
16 at *2-5. Plaintiff submitted that it had received $113,344.00. DA 168. In its audit, GSA
corrected this amount to $113,343.78. Id. The Court assumes that when submitting the
settlement proposal, Plaintiff chose to round up the amount to the nearest dollar figure. In any
event, GSA’s adjustment resulted in an increase to Plaintiff, albeit of a mere $0.22.
Unsurprisingly, Plaintiff has not raised any objection to this adjustment. Therefore, the Court
accepts the amount of $113,343.78.
H. Final Calculation
With all of the issues regarding individual costs now resolved, the Court shall turn to the
total amount that is owed to Plaintiff. That calculation is set forth in the following table:
Cost Element Final Amount
Direct Material Costs $72,768.13
Direct Labor Costs $8,502.53
Other Costs $33,222.50
General and Administrative $15,983.24
Expenses
Total Costs $130,476.40
Profit $13,047.64
Subtotal $143,524.04
Settlements with Subcontractors $0.00
7
($72,768.13 (Direct Costs) + $8,502.53 (Direct Labor) + $33,222.50 (Other Costs) + $15,983.24 (General &
Administrative)) * 0.10 = $13,047.64.
10
Net Amount $143,524.04
Payments Made by GSA $113,343.78
Total Amount Due to HJL $30,180.26
V. Conclusion
For the reasons set forth above, the Court holds that Plaintiff is entitled to recover
$30,180.26 in settlement costs as a result of the termination of the contract for convenience.
Defendant’s Motion for Summary Judgment on Damages is hereby GRANTED with correction
for clerical error and Plaintiff’s Motion is hereby DENIED. The Clerk is directed to enter
judgment accordingly.
s/ Edward J. Damich
EDWARD J. DAMICH
Senior Judge
11
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1469
THERESA L. CHIEFFALLO-CRAIG,
Plaintiff - Appellant,
v.
RELIANCE STANDARD LIFE INSURANCE,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-01199-JFM)
Submitted: June 18, 2015 Decided: June 22, 2015
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Theresa L. Chieffallo-Craig, Appellant Pro Se. Joshua Bachrach,
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Philadelphia,
Pennsylvania, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Theresa L. Chieffallo-Craig seeks to appeal the district
court’s order granting summary judgment to Defendant in her
civil suit brought pursuant to the Employee Retirement Income
Security Act, 29 U.S.C. §§ 1001-1461 (2012). We dismiss the
appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
Parties in a civil action in which the United States is not
a party are accorded 30 days after the entry of the district
court’s final judgment or order to note an appeal, Fed. R. App.
P. 4(a)(1)(A), unless the district court extends the appeal
period under Fed. R. App. P. 4(a)(5), or reopens the appeal
period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a
notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
The district court’s order was entered on the docket on
February 18, 2015. The notice of appeal was filed in the
district court on April 24, 2015. Because Chieffallo-Craig
failed to file a timely notice of appeal or to obtain an
extension or reopening of the appeal period, * we dismiss the
*
Even if the untimely notice of appeal were construed as a
motion for an extension of time to file her notice under Rule
4(a)(5), we conclude that such a motion could not be granted
because Chieffallo-Craig filed her notice of appeal after the
30-day excusable neglect period expired. See Dolan v. United
(Continued)
2
appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
States, 560 U.S. 605, 610 (2010) (stating that “expiration of a
‘jurisdictional’ deadline prevents the court from . . .
extend[ing] that deadline”). Moreover, because Chieffallo-Craig
states that she received notice of the judgment two days after
it was entered, Rule 4(a)(6) does not apply.
3
|
81 F.3d 151
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Armon O'neal BEAVERS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Larry Thomas WILLIAMS, Defendant-Appellant.
Nos. 95-5337, 95-5338.
United States Court of Appeals, Fourth Circuit.
Argued March 5, 1996.Decided April 8, 1996.
Appeals from the United States District Court for the Western District of Virginia, at Abingdon. Samuel G. Wilson, District Judge. (CR-92-46)
ARGUED: Birg Eugene Sergent, Pennington Gap, Virginia, for Appellant Beavers; Dennis Eugene Jones, Lebanon, Virginia, for Appellant Williams. Julie C. Dudley, Assistant United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.
W.D.Va.
AFFIRMED.
Before RUSSELL and WIDENER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Appellants Armon O'Neal Beavers and Larry Thomas Williams entered into plea agreements with the United States Attorney for the Western District of Virginia. Williams pled guilty to Count 1 in the indictment which charged conspiracy to distribute or to possess with intent to distribute cocaine. Beavers' plea was to conspiracy to distribute or possess with intent to distribute and possession of an unregistered firearms silencer in violation of 26 U.S.C. §§ 5861(d) and 5871. Beavers was sentenced to serve 135 months on Count 1 and 120 months on Count 2 with the sentences to run concurrently. The government filed a motion for a downward departure as to Williams based upon his substantial assistance. The district court sentenced him to 100 months and took under advisement the downward departure motion. Later the court reduced this sentence to 48 months.
2
Both defendants appealed to this court claiming that the prosecutor violated their respective plea agreements by failing to make the required sentencing recommendations. In an unpublished opinion filed January 18, 1995, this court vacated both sentences and remanded for resentencing, because we found that the prosecutor neglected to recommend to the district court that Beavers be sentenced at the low end of the guideline range as required by his plea agreement. As to Williams, the prosecutor recommended the district court sentence Williams at the low end of the guideline range but did not recommend to the district court that Williams receive a sentence of 24 months as required by his plea agreement.
3
At the resentencing hearing held on April 24, 1995, Beavers was resentenced to 108 months and Williams sentenced to 48 months. Each defendant appeals claiming that the government still has not lived up to its commitments under the plea agreements. Beavers contends that he bargained in good faith for a substantial assistance reduction and complied with it so far as he was able. Williams contends that the government only partially lived up to the agreement because the prosecutor did not make the sentencing court aware of the value of the information given by Williams.
4
We find no merit in either appeal, and we affirm both sentences.
I.
5
Beavers contends that he provided substantial assistance by advising the government of the location of a boat and property which was forfeited to the government. He contends that he was never given the opportunity to provide further information and was thereby denied his right to provide substantial assistance to the government as provided by the plea agreement. This claim is totally lacking in merit. We stated in the prior opinion, "We have reviewed the record and find that the prosecutor did not violate the plea agreement in this respect, because Beavers had not provided substantial assistance." The forfeiture of the boat and the property was not substantial assistance because it was required by the plea agreement. As to his claim that he was never debriefed by federal agents, he admitted to the district court at his resentencing that he had not volunteered any information to the government and had made no attempt to contact the government or to let the government know what information he had that it could use.
6
The government lived up to its side of the bargain. Beavers was allowed to plead guilty to only two of a ten count indictment. He received a stipulation as to the drug weight, that he was not a leader or organizer, that he was entitled to a three level credit for acceptance of responsibility and that he be sentenced at the low end of the guidelines. He was given the opportunity to provide substantial assistance. This opportunity does not place an obligation upon the government to debrief him or to seek out information. He is the one seeking the downward departure, and he has the obligation to provide the information. At the resentencing in April 1995, he was again given this opportunity and nothing of value was forthcoming. There was no breach of the agreement by the government in this respect.
II.
7
Williams argues that the government breached its plea agreement at the resentencing by failing to advise the court of the full nature and extent of his assistance so the court could determine the appropriate downward departure. He asserts that the prosecutor was not sufficiently enthusiastic in making the motion.
8
Williams relies upon United States v. Brown, 500 F.2d 375 (4th Cir.1974), but Brown is not applicable to the present facts. In Brown a prosecutor, other than the one who made the plea agreement, attended the sentencing hearing and made remarks indicating his reservations about the agreement to which the government had committed itself. In the present case, the prosecutor did everything that the agreement required of him. This case is governed by United States v. Benchimol, 471 U.S. 453 (1985), which holds that unless the government in the plea agreement binds itself to "enthusiastically" recommend to the sentencing court or to explain to the court its reasons for making the recommendation, there is no obligation on the part of the government to do so.
9
If a defendant wants enthusiasm from the prosecutor, this is something to be bargained for and included in the agreement.
10
Williams' guideline range was 100 to 125 months, and as a result of the government's motion, this was reduced to 48 months. The sentencing judge understood the government's motion for a downward departure to 24 months, but the court specifically found that Williams' substantial criminal record persuaded the court that a reduction of 24 months was not warranted.
III.
11
Both appellants contend that when these cases were remanded for resentencing, we should have directed that a different district judge conduct the resentencing, and assert that Santobello v. New York, 404 U.S. 257 (1971) and United States v. Peglegra, 33 F.3d 412 (4th Cir.1994) require a different judge. Such action is not required on the present facts. In Santobello and Peglegra, the prosecutor made recommendations directly contrary to the terms of the plea agreements at the sentencing hearings. But, in the present cases we found that the prosecutor had inadvertently neglected to recommend that Beavers be sentenced at the low end of the guidelines and that Williams receive a 24 month sentence. There has been no finding that the prosecutor violated either plea agreement and the cases were not remanded on this basis, so it was unnecessary to bring in a new judge.
12
For the reasons stated above, the sentences of both appellants are AFFIRMED.
|
425 F.2d 543
OFFICE OF COMMUNICATION OF THE UNITED CHURCH OF CHRIST, Aaron Henry, Robert L. T. Smith, and United Church of Christ at Tougaloo, Appellants,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee.Lamar Life Broadcasting Company, Intervenor.
No. 19409.
United States Court of Appeals District of Columbia Circuit.
Reargued February 18, 1969.
Decided June 20, 1969.
Rehearing En Banc Denied September 5, 1969.
Mr. Earle K. Moore, New York City (except for Aaron Henry, On Rehearing), with whom Mr. Henry F. Lerch, Washington, D. C., and Mrs. Ann Aldrich, Cleveland, Ohio, were on the brief, for appellants.
Mr. Stuart F. Feldstein, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, and John H. Conlin, Associate General Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Howard J. Braun, Counsel, Federal Communications Commission at the time the record was filed, also entered an appearance for appellee.
Mr. Paul A. Porter, Washington, D. C., with whom Mr. Reed Miller, Dennis G. Lyons and Robert D. Rosenbaum, Washington, D. C., was on the brief, for intervenor.
Messrs. Peter L. Koff and Lawrence Speiser, Washington, D. C., filed a brief on behalf of American Civil Liberties Union as amicus curiae urging reversal.
Before BURGER, McGOWAN and TAMM, Circuit Judges.
BURGER, Circuit Judge:
1
This case returns to the Court again after hearings held pursuant to an earlier opinion of this Court in which we directed that intervenors representing segments of the licensee's listening public were to be permitted to intervene and participate.1 No additional intervenors thereafter sought to take part in the Commission proceedings.2
2
The action of this Court in remanding for hearings with listening-public intervenors taking part followed the Commission's 1965 action which granted the licensee a "probationary" one year license.3 This unusual Commission action underscored that in the proceedings involving the application for a three-year renewal (from 1964 to 1967) the Commission had not been able to conclude that the licensee met the burden of showing that renewal of its license for three years was in the public interest.
3
Following various complaints filed with it, in 1962 the Commission had initiated its own field investigation into the programming operations of certain Mississippi broadcast stations, including WLBT. This investigation precipitated a July 25, 1963, letter from the Commission requesting the licensee's comments on listed questions as to its programming policies and set forth some of the specific findings of the field investigation on these matters. The Commission's consideration of WLBT's reply was pending when the licensee filed an application for renewal of its license for the June 1, 1964 to June 1, 1967 period.
4
In reviewing these responses prior to its award of the one-year probationary grant, the Commission noted, inter alia:
5
The question is rather whether the licensee complied with the requirements of the fairness doctrine — i. e., whether, having presented one side of a controversial issue of public importance, it sought affirmatively to encourage and implement the presentation of contrasting viewpoints. The licensee's response is not fully satisfactory in this respect.
6
* * * * * *
7
In short, when a fairness complaint is made, a licensee relying upon network programs to balance local broadcasts has the burden of demonstrating that the network shows carried by it did present contrasting viewpoints to those expressed in the local broadcasts. That showing has not been made here.
8
Lamar Life Broadcasting Co., supra note 3 at 1146, 1147-1148 (emphasis added).
9
Moreover, in setting forth the specific conditions attached to its one-year probationary award, the Commission provided:
10
(iv) That the licensee immediately cease discriminatory programming patterns. Thus, it is up to the licensee to make the programming judgment whether or not to have a daily 1-minute devotional program at noon, in which appearances are rotated among the area churches in the area on the basis of race. Such a practice is obviously inconsistent with the public interest; indeed, we note that the licensee does not try to defend it.
11
Id. at 1154 (emphasis added).
12
In discussing the Commission's action we noted that the Commission had found that the licensee's prior conduct prevented the grant of a full term license.4
13
When the matter was again before the Commission on our remand, therefore, it was in a posture that the licensee had yet to demonstrate that it was in the public interest for the license to be renewed. This was a less favorable posture for the licensee than would have been the case absent the "probationary license" grant. This is important, but its significance seems to have eluded the hearing Examiner and the Commission as well; we emphasize this now to remove any lingering doubts as to our evaluation of a "probationary" grant — a grant which by its nature assumes that the renewal-licensee has been unable to persuade the Commission that it is presently in the public interest to grant a three-year renewal. That the Examiner failed to grasp this fact is reflected throughout his report and noticeably in his statement that "the evidentiary hearing * * * presented [Appellants] ample and sufficient opportunity to come forward and sustain their serious allegations that they had made against the applicant. They have woefully failed to do so * * *."
14
Lamar Life Broadcasting Co., 14 F.C.C. 2d 495, 549 (1967) (emphasis added).
15
Since the Commission itself had previously found that some of these "serious allegations" were sufficient to withhold the grant of the traditional three-year license, the Examiner's approach, and its subsequent adoption by the Commission, signifies an attitude considerably at odds with the Commission's earlier action in refusing a three-year license. The Examiner seems to have regarded Appellants as "plaintiffs" and the licensee as "defendant," with burdens of proof allocated accordingly. This tack, though possibly fostered by the Commission's own action,5 was a grave misreading of our holding on this question.6 We did not intend that intervenors representing a public interest be treated as interlopers. Rather, if analogues can be useful, a "Public Intervenor" who is seeking no license or private right is, in this context, more nearly like a complaining witness who presents evidence to police or a prosecutor whose duty it is to conduct an affirmative and objective investigation of all the facts and to pursue his prosecutorial or regulatory function if there is probable cause to believe a violation has occurred.
16
This was all the more true here because prior to the efforts of the actively participating intervenors, the Commission itself had long since found the licensee wanting.7 It was not the correct role of the Examiner or the Commission to sit back and simply provide a forum for the intervenors; the Commission's duties did not end by allowing Appellants to intervene; its duties began at that stage.
17
A curious neutrality-in-favor-of-the-licensee seems to have guided the Examiner in his conduct of the evidentiary hearing. An example of this is found in his reaction to evidence of a monitoring study conducted by Appellants for about one week in 1964 and which was the subject of two days of testimony at the hearing. The Examiner's conclusion was that the play-back had "virtually no meaning for the simple reason that it was not * * * fair and equitable. [It] is worthless and therefore completely discounted for any consideration by the hearing examiner." 14 F.C.C. 2d at 543 (emphasis added). In context or out, this reaction is difficult to comprehend.8 The Commission has often complained — and no doubt justifiably so — that it cannot monitor licensees in any meaningful way; here a 7-day monitoring, made at no public expense, was presented by a public interest intervenor and was dismissed as "worthless" by the Commission.
18
Concerning the cutting off of a network program relied on by Intervenors as showing violations of the Fairness Doctrine the Examiner found: "There is not one iota of evidence in the record that supports any such allegation." Yet in the transcript of proceedings we find testimony identifying the program which was admittedly cut off. The record shows the following:
19
Q. Did you recognize the lunch counter?
20
A. I recognized the Woolworth Counter where the demonstration occurred here and the picture immediately disappeared. I picked up the telephone and immediately called WLBT —
21
Q. With whom did you speak?
22
A. The man refused to identify himself. I did not identify myself. I said, "Did you cut that off because that showed those Negroes sitting in at Woolworth's in Jackson?" The man said, "Yes."
23
MR. GEORGE: I object. I may be anticipating but I will object to any statement as to the reply.
24
PRESIDING EXAMINER: That is correct. We will sustain that portion of it. You can't quote some undisclosed person.
25
The portion of the answer is stricken where he was quoting some unidentified person which is sheer hearsay.
9
26
J.A. 720-21 (emphasis added).
27
On allegations that at least two of the licensee's commentators used disparaging terms with reference to Negroes there was testimony of listeners who said they heard these episodes; in his initial decision the Examiner noted that "[a]t least three of the [Appellants'] witnesses" so testified. Nevertheless, the Examiner chose to belittle this evidence:
28
Because of the conflicting testimony respecting Ellis [one of WLBT's commentators], there is no finding made as whether he did or did not use the word "nigger" or "negra". But the evidence is undisputed that Alon Bee did use the expressions "negra" or "nigger" at some indefinite time in the past while broadcasting over station WLBT. A glaring weakness of the intervenors' evidence here is that, as in many of their allegations, they did not pinpoint specific times when certain events supposedly occurred, thereby unfairly depriving the applicant of an opportunity properly to rebut such allegations.
29
14 F.C.C.2d at 510 (emphasis added).
30
It is not our function to determine whether this would have supported a finding that the licensee had violated the Fairness Doctrine but the Examiner's erroneous concept of the burden of proof shows a failure to grasp the distinction between "allegations" and testimonial evidence, and prevented the development of a satisfactory record.
31
The infinite potential of broadcasting to influence American life renders somewhat irrelevant the semantics of whether broadcasting is or is not to be described as a public utility. By whatever name or classification, broadcasters are temporary permittees — fiduciaries — of a great public resource and they must meet the highest standards which are embraced in the public interest concept. The Fairness Doctrine plays a very large role in assuring that the public resource granted to licensees at no cost will be used in the public interest. In short, we do not determine how the factors we have discussed should have been weighed by the Commission but only that they had some probative value and should have been considered. To borrow a phrase from the Examiner, his response manifests a "glaring weakness" in his grasp of the function and purpose of the hearing and the public duties of the Commission.
32
We need not continue recitals from the record or examples of similar situations which shed light on the nature of the hearings; in our view the entire hearing was permeated by similar treatment of the efforts of the intervenors, and the pervasive impatience — if not hostility — of the Examiner is a constant factor which made fair and impartial consideration impossible. The Commission and the Examiners have an affirmative duty to assist in the development of a meaningful record which can serve as the basis for the evaluation of the licensee's performance of his duty to serve the public interest. The Public Intervenors, who were performing a public service under a mandate of this court, were entitled to a more hospitable reception in the performance of that function. As we view the record the Examiner tended to impede the exploration of the very issues which we would reasonably expect the Commission itself would have initiated; an ally was regarded as an opponent.
33
The Commission, except as modified on some minor points, adopted the Examiner's Initial Decision: "[W]e are in agreement with the examiner's conclusions that the intervenors failed to corroborate or substantiate virtually all of their allegations upon which the hearing was predicated * * *." Lamar Life Broadcasting Co., 14 F.C.C.2d 431, 433 (1968). In a footnote to this resolution, the Commission notes:
34
8. Since our decision is based on the preponderance of evidence adduced at the hearing, we are of the opinion that the intervenors' argument that they only had the burden of going forward with evidence in the first instance on hearing issues (a) and (b), that the Broadcast Bureau only had the burden of going forward on issue (c), and that the station had the actual burden of proof on those issues, is mooted.
35
In this respect, we think it important to set forth what the trial Examiner understood the burdens of proof to be, for his understanding on this point profoundly affected his crediting or dismissing what was in essence testimonial evidence although he constantly characterized the evidence as "allegations":
36
MR. MOORE [Counsel for appellants]: * * * I just want to state for the record that as I understand the burden of proof, the burden of proof on all issues is on the station and the only burden on the applicant [sic; should be intervenors] and the Bureau is the burden of going forward.
37
That is my understanding of the interpretation which has been placed on the Commission's order by the Court of Appeals.
38
PRESIDING EXAMINER: No, that is not my interpretation. My interpretation is, by the Commission action, is that the burden of proof is primarily upon the intervenors on issues A and B, on the Broadcast Bureau on C and on the applicant on D, and you can't by waving the magic wand, shift the burden of proof to this applicant or to the Bureau.
39
J.A. 304-305 (emphasis added).
40
That this concept of the allocation of the burden of proof permeated the Commission's final resolution can be seen in its constant references to the Public Intervenor's failure to "prove" its "charges". As the Commission noted in closing: "We only conclude that the intervenors have failed to prove their charges and that the preponderance of the evidence before us establishes that WLBT has afforded reasonable opportunity for the use of its facilities by the significant community groups comprising its service area." 14 F.C.C.2d at 437-438. Once again we see the pervasiveness of the original error in confusing mere "allegations" and testimonial evidence — evidence which if not contradicted by the licensee's evidence, or on its face incredible, was entitled to carry the day in terms of establishing the point to which it was directed.
41
The Examiner and the Commission appear to have overlooked the 1965 Memorandum Opinion and Order of the Commission which contains much to the contrary to its present position;10 moreover, the practical effect of the Commission's action was to place on the Public Intervenors the entire burden of showing that the licensee was not qualified to be granted a renewal. The Examiner and the Commission exhibited at best a reluctant tolerance of this court's mandate11 and at worst a profound hostility to the participation of the Public Intervenors and their efforts.12
42
The record now before us leaves us with a profound concern over the entire handling of this case following the remand to the Commission. The impatience with the Public Intervenors, the hostility toward their efforts to satisfy a surprisingly strict standard of proof, plain errors in rulings and findings lead us, albeit reluctantly, to the conclusion that it will serve no useful purpose to ask the Commission to reconsider the Examiner's actions and its own Decision and Order under a correct allocation of the burden of proof. The administrative conduct reflected in this record is beyond repair.
43
The Commission itself, with more specific documentation of the licensee's shortcomings than it had in 1965 has now found virtues in the licensee which it was unable to perceive in 1965 and now finds the grant of a full three-year license to be in the public interest.
44
We are compelled to hold, on the whole record, that the Commission's conclusion is not supported by substantial evidence. For this reason the grant of a license must be vacated forthwith and the Commission is directed to invite applications to be filed for the license. We do refrain, however, from holding that the licensee be declared disqualified from filing a new application; the conduct of the hearing was not primarily the licensee's responsibility, although as the applicant it had the burden of proof. Moreover, the Commission necessarily did not address itself to the precise question of WLBT's qualifications to be an applicant in the new proceeding now ordered, and we hesitate to pass on this subject not considered by the Commission.
45
The Commission is directed to consider a plan for interim operation pending completion of its hearings; if it finds it in the public interest to permit the present licensee to carry on interim operations that alternative is available. The Commission is free to consider whether net earnings of the licensee should be impounded by the Commission pending final disposition of this license application.13
46
Reversed and remanded for further proceedings in accordance with this opinion.
Notes:
1
Office of Communication of the United Church of Christ v. FCC, 123 U.S.App. D.C. 328, 359 F.2d 994 (1966)
2
The fact that no additional intervenors brought their case to the Commission substantiates our earlier observation that:
The fears of regulatory agencies that their process will be inundated by expansion of standing criteria are rarely borne out. Always a restraining factor is the expense of participation in the administrative process, an economic reality which will operate to limit the number of those who will seek participation; legal and related expenses of administrative proceedings are such that even those with large economic interests find the cost burdensome. Moreover, the listening public seeking intervention in a license renewal proceeding cannot attract lawyers to represent their cause by the prospect of lucrative contingent fees, as can be done, for example, in rate cases.
Church of Christ, supra note 1 at 340, 359 F.2d at 1006.
3
Lamar Life Broadcasting Co., 38 F.C.C. 1143 (1965)
4
At that time we observed:
The Commission in this Court argues that it accepted all Appellant's allegations of WLBT's misconduct and that for this reason no hearing was necessary. Yet the Commission recognized that WLBT's past behavior, as described by Appellants, would preclude the statutory finding of public interest necessary for license renewal; hence its grant of the one-year license on the policy ground that there was an urgent need at the time for a properly run station in Jackson must have been predicated on a belief that the need was so great as to warrant the risk that WLBT might continue its improper conduct.
Church of Christ, supra note 1 at 341, 359 F.2d at 1007.
5
In setting the hearing following our remand, the Commission, on May 26, 1966, designated the hearing issues to be:
(a) Whether station WLBT has afforded reasonable opportunity for the discussion of conflicting views on issues of public importance;
(b) Whether station WLBT has afforded reasonable opportunity for the use of its broadcasting facilities by the significant groups comprising the community of its service area;
(c) Whether station WLBT has acted in good faith with respect to the presentation of programs dealing with the issue of racial discrimination, and, particularly, whether it has misrepresented to the public or the Commission with respect to the presentation of such programming.
(d) Whether in light of all the evidence a grant of the application for renewal of license of Station WLBT would serve the public interest, convenience, or necessity.
In the designation Order, the Commission explained:
10
Pursuant to the rule announced inD & E Broadcasting Company, 1 FCC 2d 78 (1965), and in accordance with the statutory mandate of Section 309 (e), the burden of proof as to issues (a) and (b) shall be upon the intervenors, the burden of proof as to issue (c) shall be upon the Broadcast Bureau, and the burden of proof as to issue (d) shall be upon the applicant.
Lamar Life Broadcasting Co., 3 F.C.C.2d 784 (1966).
6
Prior to the initiation of the evidentiary hearing we denied Appellants' motion for clarification of our earlier opinion; however, in a memorandum statement accompanying the denial we noted:
In our view it should not be necessary, and certainly is not desirable, for this court to supervise the details of conduct of hearings before the Commission by the device of periodic revision of the language used in opinions. Only the most extraordinary circumstances would warrant our intervention by this means; such circumstances do not exist here inasmuch as, in respect of paragraphs 9 and 10, respectively, of the Commission's order released May 25, 1966, we assume that (1) the Commission's concept of evidence of past performance which, in its words, "is not unduly remote in time" is commensurate with what was, in our words, "a history of programming misconduct of the kind alleged" occasioning our remand, and (2) the Commission's reference to "the burden of proof" in respect of issues (a), (b), and (c) is intended to mean only the burden of going forward with evidence in the first instance.
Church of Christ, No. 19,409 (D.C. Cir., Filed November 18, 1966) (emphasis added).
7
In connection with WLBT's 1959 renewal applications, the Commission had found specific failures to comply with the demands of the Fairness Doctrine, but did not withhold a renewal on the grounds that they were "isolated violations." See Lamar Life Broadcasting Co.,supra note 3 at 1145.
8
The following excerpts from the hearing transcript illustrate the licensee's success in placing an unrealistic burden on the Intervenors. Mrs. Elizabeth Ewing, who prepared the monitoring study exhibits on behalf of Appellants, was the witness:
Q. Could you tell from the tape whether the news of, well say, Dick Sanders, whether he was reading from United Press International wirecopy? Do you know what that is?
A. Yes.
Q. Could you tell whether he was reading from UPI wirecopy or from a transcript that he, himself, had prepared?
A. No.
Q. Did you make any identifications where the source of information was coming from?
A. No.
* * * * *
Q. Have you ever lived in Jackson, Mississippi?
A. No, I have not.
Q. Did you receive any instructions as to what would be of interest to the people in Jackson, Mississippi?
A. No.
Q. Did you study any documents or books or papers to find out what would be of interest to the people in Jackson, Mississippi?
A. No.
Q. Did you read Jackson newspapers during this period in March 1964?
A. No.
* * * * *
Q. Do you know whether or not Dick Sanders was quoting a press release from the Department of Justice?
A. No.
Q. Do you know whether he was quoting directly from the wire service?
A. No, I don't.
Joint Appendix 172, 183-184, 187 [hereinafter J.A.].
This witness had already produced evidence of the contents of the monitored broadcasts, yet she was pursued to ascertain the source of these programs — the type of information particularly in the control and at the disposal of a broadcast licensee. In evaluating Mrs. Ewing's testimony, the Examiner pursued the same tack, discrediting the study and the testimonial evidence to support it without ever placing on the licensee the affirmative burden of producing evidence to establish either the true source of the programming materials or, as compared to that of Mrs. Ewing, its own sensitivity to the needs and interests of portions of its listening audience.
9
Conceivably a licensee might be justified, in some circumstances, to decline to carry a program it regarded as inflammatory because of current tensions; if placed on that basis and reasonable exercise of such discretion presumably would be sustained by the Commission
10
See note 4 supra.
11
See note 6 supra.
12
Two members of the Commission seemed to read the record much as we read it now. In a further statement filed by Commissioners Cox and Johnson in response to the majority's "further statement" in response to the original dissent, the dissenting Commissioners noted:
We remain perplexed by our colleagues' interpretation of the burden of proof issue, notwithstanding their attempt to further elucidate this problem in the further statement. As we noted in our dissenting opinion, the court of appeals clearly expressed its expectation that the Commission would resolve the problem by placing upon petitioners [Public Interest Intervenors] "only the burden of going forward with evidence in the first instance." By the strictures of the Communications Act of 1934, it is the licensee who is obligated to prove that renewal of his license is in the public interest, convenience, or necessity.
Our colleagues maintain that, "neither the burden of going forward with the evidence nor the burden of nonpersuasion [is] * * * discharged by the party on whom it may fall by the simple making of charges and/or allegations." Needless to say, we have not suggested that "simple charges and/or allegations" are adequate. However, under their construction, it almost seems that presumptions favoring the licensee arise as to each of the issues contained in the pleadings; and, thus, as to the ultimate issue of public interest. This rule of procedure is plainly unjust and flatly contradictory of the court's memorandum respecting the burden of proof questions, a fact noted in our dissent and not disputed by the further statement.
Lamar Life Broadcasting Co., 14 F.C.C. 2d 431, 487 (1968).
13
We are aware that in the ordinary course the license granted by the Commission would expire on June 1, 1970
47
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges, in Chambers.
On Petitions for Rehearing or Clarification and Suggestions for Rehearing en banc
ORDER
48
PER CURIAM.
49
On consideration of the petitions filed herein by counsel for the Federal Communications Commission and intervenor, Lamar Life Broadcasting Company, for rehearing, for clarification of the Court's opinion and of the suggestions for rehearing en banc, it is
50
Ordered by the Court, insofar as the aforesaid petitions are directed to the assigned division of this Court, that said petitions be denied, and it is
51
Further ordered by the Court en banc, there not being a majority of the judges of this circuit in favor of having this case reheard by the Court sitting en banc that the suggestions for en banc hearing are denied.
52
STATEMENT OF JUDGES McGOWAN AND TAMM ACCOMPANYING VOTE TO DENY THE PETITION OF THE FEDERAL COMMUNICATIONS COMMISSION FOR REHEARING BY THE PANEL OR EN BANC.
53
The essential conclusion of the division which heard this case was that the record compiled upon remand was, because of the misconceptions of the Trial Examiner, in no state to admit of an informed and reliable finding as to whether the renewal sought was in the public interest. Since the licensee has not in over six years established its right to continue to be entrusted with this valuable public asset, the opinion understandably expressed some impatience with this state of affairs, although it recognized that the ineptitude of the Commission was as much, if not more, to blame for this scandalous delay than was the licensee. For this reason, the division was not disposed to declare the licensee ineligible to seek new authority to use the channel. It did think that the licensee should compete for that authority, on even terms as nearly as may be, with any other applicant.
54
The Commission professes concern that the court has improperly arrogated to itself a decision which assertedly is committed only to the Commission, namely, the denial of the license renewal application because the licensee is not qualified under any circumstances, in terms of the public interest, to have the channel. Had that been the division's purpose, it would not have contemplated that the licensee could be one of the competing applicants. What was held was that the proceedings on remand had been hopelessly bungled and that the public interest was best served by taking note of the early expiration date* and getting on with a new hearing in which the Commission can decide who is best qualified to have this channel. The Commission knows full well how to do this under its existing powers, without interruption of the present service if that is deemed important and on such terms as it thinks fit.
55
The Commission points to the provision of 47 U.S.C. § 307(d) to the effect that, pending final disposition of a renewal application, the Commission "shall continue such license in effect." It says that this means that the licensee seeking renewal must be regarded as having continuing authority until its application has been finally disposed of adversely to it — and this last, so it is said, only the Commission can do. It is doubtful if Congress intended that a licensee should be able to remain in possession indefinitely merely because the Commission proves unable or unwilling to conduct proceedings which will survive judicial scrutiny. A licensee holding over on any such basis is, at best, a licensee in name only, and it is presumably in such light that the licensee here involved will take its place among competing applicants.
Notes:
*
The license grant under review terminates June 1, 1970, and proceedings to determine who should be the licensee for the term beginning on that date would have to get under way in ample time before that
|
940 N.E.2d 822 (2010)
FRANKLIN ELEC. CO. MEDICAL PLAN
v.
LUTHERAN HOSP.
Supreme Court of Indiana.
August 26, 2010.
Transfer denied. All Justices concur, except for Shepard C.J., and Sullivan, J., who vote to grant the petition for transfer.
|
234 S.W.2d 765 (1950)
FEAZELL
v.
SUMMERS.
No. 4-9331.
Supreme Court of Arkansas.
December 18, 1950.
*766 Wright & Curlee, Mountain Home, for appellant.
Nell Powell Wright, Mountain Home, for appellee.
MILLWEE, Justice.
Appellee, James Odus Summers, sustained a disabling injury to his right hand on February 9, 1948 while working as a driller's helper in the drilling of a water well near Mountain Home in Baxter County, Arkansas. Claim for compensation was in due time filed with the Workmen's Compensation Commission against appellant, W. T. Feazell, owner of the drilling rig.
After separate hearings before a special referee and the full commission, the latter found:
"1. That on February 9, 1948, the uninsured employer, W. T. Feazell, was carrying on an employment in the State of Arkansas in which five or more employees were regularly employed in the same business or establishment, thus making the said employer subject to the jurisdiction of the Arkansas Workmen's Compensation Law and the provisions thereof.
"2. That the claimant, James Odus Summers, was an employee of the said W. T. Feazell on February 9, 1948, at which time he sustained an injury to his right hand, from which he was temporarily totally disabled to March 17, 1948, following which he was partially disabled to August 9, 1948, the said injury resulting in a 45 percent permanent partial disability to the right hand."
The commission issued an award which recites: "The respondent will pay to the claimant compensation at the rate of $20.00 per week from February 9, 1948, to March 17, 1948, and shall further pay to the claimant compensation at the rate of 65 percent of the difference between the claimant's pre-injury weekly wage and his earnings between the period March 17, 1948, and August 9, 1948, following which compensation at the rate of $20.00 per week shall be paid to the claimant for 67-½ weeks, being compensation for a 45 percent permanent partial disability to the right hand."
On appeal to' the Baxter Circuit Court the findings and award of the commission were affirmed.
For reversal appellant contends that he was not subject to the provisions of the Workmen's Compensation Act at the time of the injury, (1) because he was not an employer of five or more employees as provided in the act, and (2) because appellee was an independent contractor. Under our well-established rule the findings of fact made by the commission will on appeal be given the same finality as the verdict of a jury and be affirmed, if there is sufficient competent testimony to support such findings. Brooks v. Claywell, 215 Ark. 913, 224 S.W.2d 37.
The evidence on behalf of appellee tends to establish the following facts: Appellant resides at Mountain Home, Arkansas where he has been engaged in the well drilling business for the past 12 or 13 years. He owns three drilling rigs each of which is operated *767 by two men, a driller and his helper. The state line between Missouri and Arkansas is the northern boundary of Baxter County. While appellant's principal operations have been carried on in Baxter County, where the men operating the rigs also reside, he has at times engaged in drilling operations across the state line in Missouri. In August and September, 1947 the three rigs were being operated in Arkansas with six, and at times eight, men being employed. In October, 1947 appellant contracted to drill some wells for the Federal Government across the line in Missouri where two of the rigs were in operation at the time of appellee's injury in February, 1948. These rigs were moved back to locations in Baxter County, Arkansas in the spring of 1948 where they were being operated at the time of the hearing before the commission.
Appellant paid the operators of the rigs an hourly wage prior to December, 1947 when he began paying appellee 45, and the driller 55, per foot for the number of feet drilled, with appellant furnishing the oil and grease and appellee and the driller furnishing the gasoline used in the drilling operation. Appellant also furnished the materials and parts for all repairs which were made by the operators. This arrangement was in effect at the time of appellee's injury while drilling a well for Loyd Byler in Baxter County. Appellant made the contract with Byler who paid appellant for the well and the latter in turn paid appellee and the driller by checks bearing the notation, "For Wages". This practice was usually followed on other jobs but at times payment would be made to the driller who in turn paid his helper and the appellant.
At the time of appellee's injury the workmen in Missouri were being paid by the hour, but shortly thereafter this method was changed to a footage basis. On other operations in both Arkansas and Missouri the workmen were paid hourly wages on some jobs and on a footage basis on others. Under either arrangement appellant had the right to terminate the employment at any time and the workmen could quit any time they chose. The operators were experienced workmen and very little supervision concerning the hours worked and the manner of drilling was necessary. Appellant exercised the same manner of control over the work when the men were paid on a footage basis as when they were paid by the hour.
There is some conflict in the testimony regarding the method of operation after December, 1947. Appellant testified that after that date he orally leased the rigs to the operators and received rentals from them on a footage basis, for use of the machinery. He was "not positive" but did not "believe" that he had ever had as many as 5 men working for him in Arkansas. This testimony was contradicted by the evidence on behalf of appellee as hereinbefore set out.
Ark.Stats. § 81-1302(c) which was in effect at the time of appellee's injury provides : "`Employment' means every employment carried on in the State in which five (5) or more employees are regularly employed in the same business or establishment * * *"[1] It is insisted by appellant that, since two of his drilling rigs had been operating in Missouri for three months at the time of appellee's injury, the four operators of these rigs could not be counted in determining whether appellant regularly employed the necessary number of employees to bring him within the act's provisions. Because of different wording used in the compensation acts of the various states, there is little authority directly in point on the precise question. In Palle v. State Industrial Commission, 79 Utah 47, 7 P.2d 284, 288, 81 A.L.R. 1222, the court was considering an act which made every employer subject thereto, "that has in service three or more workmen or operatives regularly employed in the same business * * *." The court held that in determining whether the requisite number of workmen was employed to subject the employer *768 to the compensation act, it was immaterial that some of the men were working on a job at another place so long as all of them were doing work connected with the employer's business.
In Elsas v. Montgomery Elevator Co, 330 Mo. 596, 50 S.W.2d 130, and McFall v. Barton-Mansfield Co, 333 Mo. 110, 61 S.W. 2d 911, the Missouri court held that employees outside the state may be included in determining the number employed by an employer under a provision which made no specific reference to place of employment. See also Vantrease v. Smith, 143 Tenn. 254, 227 S.W. 1023; Republic Supply Co. v. Davis, 159 Okl. 21, 14 P.2d 222; 71 CJ, Workmen's Compensation Acts, § 134; 58 Am.Jur, Workmen's Compensation, § 87.
It is undisputed that appellant's business of well drilling has at all times been centered in Baxter County, Arkansas. The very nature of the business required that his drilling rigs be operated at different locations. All of the operations, wherever conducted, were in furtherance of, and supervised from, the business in this state. We think the evidence was sufficient to warrant a finding by the commission that appellant's primary operations were in Arkansas and that the "employment" did not cease to be "carried on in the State", within the meaning of our statute, by reason of the Missouri operations which were only temporary and incidental to the principal business and employment in this state. Certainly the evidence warrants the conclusion that appellant was subject to the act when the two rigs were moved to Missouri in October, 1947, and after they were returned to Arkansas in the spring of 1948. It would be placing a narrow and restricted construction upon the act to say that the transient operations in Missouri in the interim destroyed the continuity of the employment relationship.
We are also of the opinion that there was sufficient evidence to sustain the commission's finding that appellee was an employee of appellant at the time of his injury. The case of Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674, involved the question of whether a workman engaged in the digging of a well for a stated sum per foot was an employee or an independent contractor within the meaning of our compensation act. This court upheld the commission's finding that he was an employee under facts somewhat similar to those in the instant case. It was there stated that no hard and fast rule for determining the relationship in every case could be laid down and that each case must necessarily be governed by its own peculiar facts. In that case we also held that in determining the relationship, the compensation act is to be given a liberal construction in favor of the workman and any doubt is to be resolved in favor of his status as an employee, rather than an independent contractor. See also, Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W.2d 620.
The fact that appellant furnished the machinery and tools for the work, that he had the right to terminate the services of appellee at will, and that appellee was paid "for wages" whether payment was by the hour or upon a footage basis, are all circumstances strongly indicating the employer-employee relationship. Irvan v.Bounds, supra.None of these factorsalone may be said to be absolutely determinative of appellee's status but all are important as bearing on the primary issue of the control reserved by appellant over appellee and his work. The evidence as a whole is sufficient to sustain the commission's finding that the control reserved by appellant over appellee and his work was incompatible with the relationship of employer and independent contractor and consistent with that of master and servant.
Appellant also insists that, even though he be held subject to the compensation act, the commission was not warranted in awarding appellee compensation at the rate of 65 percent of the difference between his pre-injury weekly wage and his earnings between March 17, 1948 and August 9, 1948, because there is no showing that appellee received less wages during the last mentioned period than he was receiving prior to his injury. It is true that the evidence does not disclose the earnings of appellee *769 Between the dates specified. In reference to this differential the commission found: "This amount has not been clearly established by the evidence and will have to be ascertained by agreement of the parties hereto, if possible, or information submitted to the Commission for further direction." There is no contention that the commission was without power to make this direction. If it has not already been complied with, we can see no valid reason why it may not yet be done.
The judgment of the circuit court sustaining the order of the Workmen's Compensation Commission is affirmed.
NOTES
[1] This section was amended by Initiated Act No. 4 of 1948, which did not become effective until December 3, 1948. The amended section appears under the same section number in the 1949 cumulative pocket supplement to Vol. 7 of Ark. Stats.
|
62 B.R. 1 (1984)
In re Ronald F. GREENHILL dba R.F. Greenhill Builders, Debtor-Appellant.
No. C-2-82-1257.
United States District Court, S.D. Ohio, E.D.
November 21, 1984.
K. Clarke Fahnenbruck, Columbus, Ohio, for petitioner.
Richard Palmer, Columbus, Ohio, for respondent.
OPINION AND ORDER
KINNEARY, District Judge.
This matter is currently before the Court on appeal from the United States Bankruptcy Court for the Southern District of Ohio, Eastern Division. The appellant herein, Ronald Frederick Greenhill, appeals from an Order entered by the bankruptcy court which granted summary judgment to several judgment lien holders. Specifically, the bankruptcy court held that 11 U.S.C. § 522(f) did not operate to allow the debtor to avoid certain judicial liens upon his residential real estate.
STATEMENT OF THE CASE
On May 7, 1982, the appellant-debtor filed a Petition in Bankruptcy pursuant to Chapter 7 of Title 11 of the United States Code. The appellant-debtor's Schedule B-1 listed a residence jointly owned with his wife, Nina Greenhill. The real estate was given a market value of $45,000. The appellant-debtor's Schedule B-4 included a listing of the real estate and claimed an exemption of $5,000, as provided in § 2329.66(A)(1) of the Ohio Revised Code.
On September 14, 1982, the appellant-debtor filed a motion for summary judgment with respect to his argument that he was entitled to avoid certain judicial liens upon his residence pursuant to 11 U.S.C. *2 § 522(f). Of the ten defendants to the motion, only one filed a contra memorandum. The bankruptcy court then issued its Order upon Motion for Summary Judgment denying the appellant-debtor's motion and granting summary judgment to all creditors against whom lien avoidance applications had been filed. The creditors had not filed cross-motions for summary judgment.
DISCUSSION
Pursuant to 11 U.S.C. § 522(f), a debtor may avoid a judicial lien to the extent that such lien impairs an exemption to which the debtor is entitled under 11 U.S.C. § 522(b). There is no dispute that the type of exemption with which this Court is concerned is within the purview of § 522(b). In its Order, however, the bankruptcy court stated that
". . . under Ohio law a judicial lien does not impair a debtor's claim of exemption in residential real estate because a . . . debtor's exemption for residential real estate will prevail over (a creditor's) judgment lien and should be recognized and paid ahead of that lien from the proceeds of any future judicial sale of the debtor's real estate." [In re Schwartz, 27 B.R. 195 (S.D.Ohio).] Therefore, there being no impairment of an exemption, 11 U.S.C. § 522(f)(1) may not be used to avoid judicial liens upon a debtor's residential real estate.
In re Greenhill, 27 B.R. 197, 198 (S.D. Ohio 1982) (order granting summary judgment). The appellant-debtor argues that the exemption to which he is entitled with respect to his real estate is impaired by the judicial liens upon the real estate and, therefore, falls within the ambit of 11 U.S.C. § 522(f)(1).
The issue to be decided is whether the bankruptcy court's interpretation of what constitutes the impairment of an exemption under Ohio law is correct. The bankruptcy court's interpretation is certainly reasonable. In effect, the bankruptcy court is saying that because the debtor will always be entitled to the amount of the exemption for which § 2329.66 provides, the exemption can never be impaired by the existing judicial liens. This is because when the sale of the debtor's residence occurs, the debtor will receive, at least, the exemption amount, provided, of course, that the debtor's equity in the residence is equal to or greater than the exemption amount.
The appellant-debtor argues that the bankruptcy court's interpretation conflicts with the Bankruptcy Code's underlying policy to provide the bankrupt with a "fresh start." This Court does not agree. Under the bankruptcy court's interpretation, the debtor will always be entitled to his, in this case, $5,000 exemption for which § 2329.66(A)(1) provides or the amount of equity he has in the property, if such does not exceed $5,000, regardless of the existence of the judicial liens. The Court does not see how this impairs the debtor's "fresh start."
Finally, the appellant-debtor takes issue with the bankruptcy court's decision to enter summary judgment in favor of his creditors on his own motion for summary judgment. The bankruptcy court determined that no genuine issue of fact existed and that, contrary to the appellant-debtor's argument, the creditors were entitled to judgment as a matter of law. This was certainly within the bankruptcy court's power to do. Therefore, it was not error for the bankruptcy court to enter summary judgment, basically on its motion, in favor of the creditors.
WHEREUPON, upon consideration and being duly advised, the Court determines that the bankruptcy court's Order upon Motion for Summary Judgment to be, in all respects, correct and it is, therefore, AFFIRMED.
IT IS SO ORDERED.
|
402 F.2d 62
Willard Wilson WOOD, Appellant,v.Olin G. BLACKWELL, Warden, United States Penitentiary,Atlanta, Georgia, Appellee.
No. 26348.
United States Court of Appeals Fifth Circuit.
Oct. 24, 1968, Certiorari Denied Jan. 13, 1969.
Willard Wilson Wood, pro se.
Charles L. Goodson, U.S. Atty., Theodore E. Smith, Asst. U.S. Atty., Atlanta, Ga., for appellee.
Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.
PER CURIAM:
1
Appellant was convicted after trial by jury in the District of New Mexico on four counts charging forgery of the endorsement of the payee's name on a United States Treasury check. Upon appeal his conviction was affirmed in Wood v. United States, 10 Cir. 1966, 357 F.2d 425. Appellant, presently incarcerated in the United States Penitentiary at Atlanta, Georgia, petitioned the district court for the Northern District of Georgia for a writ of habeas corpus. That court denied the writ and appellant seeks reversal of that denial.
2
Habeas corpus is not a substitute for a motion pursuant to 28 U.S.C. 2255. 'Habeas corpus may not be resorted to unless it is made to appear that a motion under 2255 'is inadequate or ineffective to test the legality of his detention,' 28 U.S.C.A. 2255.' Birchfield v. United States, 5 Cir. 1961, 296 F.2d 120.
3
In his brief appellant asserts that he has been denied 2255 relief by the New Mexico district court, and that the Tenth Circuit has affirmed such denial. We find no published report of either proceeding. But this need not concern us here. Either the proper court has already disposed of his contentions adversely to him, or he still has the right to raise those questions by motion under 2255 in his trial court. In either case the district court below correctly ruled that no relief could be sought there because of lack of standing.
4
The denial below of the petition for writ of habeas corpus was in no way an adjudication of the merits. It was correct and is
5
Affirmed.
|
09-2280-pr
Berry v. Ercole
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 W ITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
of August, two thousand ten.
Present:
ROBERT A. KATZMANN,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
________________________________________________
JAMES BERRY,
Petitioner-Appellant,
v. No. 09-2280-pr
ROBERT E. ERCOLE,
Respondent-Appellee.
________________________________________________
For Petitioner-Appellant: BRIAN SHEPPARD , New Hyde Park, NY
For Respondent-Appellee: ALLEN J. VICKEY , Assistant District Attorney (Karen
Schlossberg, Assistant District Attorney, on the brief),
for Cyrus R. Vance, Jr., District Attorney, New York
County, New York, NY
Appeal from a denial of a petition for writ of habeas corpus in the United States District
Court for the Southern District of New York (Cote, J.) entered May 12, 2009.
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Petitioner-Appellant James Berry was sentenced on June 11, 2001 following a state court
jury trial to an aggregate term of 35 years’ imprisonment. On September 11, 2006, petitioner
filed pro se for a writ of habeas corpus arguing, inter alia, that he suffered ineffective assistance
of counsel with respect to defense attorney Allan Brenner’s advice (or alleged lack thereof)
relating to petitioner’s decision to reject a plea offer before his trial. The state court denied the
motion, stating that the “defendant’s claim of ineffective assistance of counsel is . . . factually
and legally unsupported.” J.A. 57. After filing in federal court, the petition was referred to
United States Magistrate Judge Theodore Katz who issued a Report and Recommendation on
December 19, 2008 recommending that the petition be granted as to trial counsel’s alleged
ineffectiveness at the time Berry rejected the plea offer. On May 12, 2009, the district court
issued an Opinion and Order declining to adopt Judge Katz’s recommendation and denying the
petition. This appeal followed. We assume the parties’ familiarity with the relevant additional
facts and procedural history of the case.
Though Judge Katz’s analysis was admirably thorough, after review of the record and the
district court’s extensive opinion below, we are satisfied that the petition must be rejected
because petitioner has failed to demonstrate constitutionally defective assistance of counsel
pursuant to Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland’s two-prong test,
petitioner “must (1) demonstrate that his counsel’s performance fell below an objective standard
of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice
2
arising from counsel’s allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588
(2d Cir. 2008) (internal quotation marks omitted). “To satisfy the first prong—the performance
prong—the record must demonstrate that ‘counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Wilson v.
Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). As to the
prejudice prong, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. As a general matter, however, there is a “strong presumption” that
the attorney in question provided, if not ideal representation, then at least competent assistance,
which obligates the reviewing court to adopt a deferential posture. See id. at 689. Moreover,
under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “petitioner must
identify some increment of incorrectness beyond error [in the state court’s decision] in order to
obtain habeas relief.” Jones v. West, 555 F.3d 90, 96 (2d Cir. 2009).
As evidenced by the record, petitioner here: (1) stated unequivocally at the “no plea”
colloquy that he had had a full opportunity to consider the plea offer, but preferred to go to trial,
J.A. 19-20; (2) further acknowledged that he could receive a “substantially longer sentence” as a
result, id. at 19; (3) was advised that the plea offer was “generous,” id. at 250; (4) was advised in
the normal course of attorney Brenner’s practice that the case against him was substantial; (5)
was likely informed of his sentencing exposure in the normal course of attorney Brenner’s
practice; (6) was advised that the presiding judge had a reputation “as a harsh sentencer,” J.A.
245; and (7) evidenced no willingness to plead guilty at any point in the underlying proceedings
given his unrelenting protestations of innocence. We therefore agree with the district court that
3
petitioner has both failed to demonstrate prejudice as required under Strickland and failed to
overcome AEDPA’s deference to the underlying state court proceedings because it cannot be
said that the state court’s application of Strickland was objectively unreasonable.
Thus, for substantially the reasons stated in the district court’s thorough opinion, we
hereby AFFIRM the district court’s denial of the habeas petition.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
4
|
877 F.Supp. 771 (1994)
UNITED STATES of America, Plaintiff,
v.
Luis COLON OSORIO, Defendant.
Crim. No. 93-040 (JAF).
United States District Court, D. Puerto Rico.
September 30, 1994.
*772 *773 Miguel Pereira, Asst. U.S. Atty., Guillermo Gil, U.S. Atty., San Juan, PR, for plaintiff.
Luis Abreu-Elias, San Juan, PR, for defendant.
OPINION AND ORDER
FUSTE, District Judge.
The court held a hearing on the defendant's request to suppress a post-arrest statement and the fruits of a warrantless search of defendant's vehicle. Having considered the record and documents on file, the testimony of the witnesses and the applicable law, the court grants the defendant's motion to suppress the post-arrest statement and orders the suppression of the fruits of the warrantless search of defendant's vehicle.
I.
Introduction
On March 17, 1992, Luis Colón-Osorio, a federal fugitive, was arrested in Rio Piedras, Puerto Rico by agents of the Federal Bureau of Investigation. Earlier that day, the FBI received information regarding the whereabouts of the defendant in the vicinity of the Crystal House Condominium and the San Francisco Hospital in De Diego Avenue, Rio Piedras, P.R. A Toyota 4Runner vehicle previously identified as used by the defendant, was spotted parked in front of the condominium by a team of agents. The agents flattened a tire and when Colón-Osorio proceeded to change the flat tire, he was tackled down by two agents. A brief scuffle ensued, but he was immediately handcuffed and placed under arrest.
During the pre-arrest scuffle, the arresting agents felt that the defendant was trying to reach his waist as if looking for an object and they suspected he had a weapon. Another agent who was providing backup for the arresting agents spotted a pistol within defendant's arm's length on the grass in the sidewalk's planting strip. Upon noticing the firearm, the agent asked his colleagues to account for their weapons and immediately picked the same. The attending agents verified that no one had lost a service weapon, and one of them identified the firearm as a Browning pistol that is not government-issued. In a split second action, one the arresting agents asked Mr. Colón-Osorio whether the Browning pistol was his weapon. One agent immediately expressed that "it was his", referring to the defendant. The *774 interrogating agent's question was answered by the defendant with an assenting gesture.
The defendant now seeks to suppress the non-verbal admission. The uncontroverted testimony shows that in the short time that elapsed between the arrest and the posing of the single question, no Miranda warnings were given.
The defendant was transported to the Federal Building in Hato Rey, Puerto Rico and the Toyota 4Runner was towed to the building's secured parking lot that same evening. Prior to the towing and after the arrest, FBI agents removed from the Toyota 4Runner a vinyl briefcase that the defendant had placed in the passenger seat when he attempted to depart the area and before he discovered and tried to change the flat tire. After the vehicle arrived at the Federal Building, a search took place of both the vehicle and the briefcase. Within the briefcase, the agents found among other things, pistol clips and ammunition. Although not clear from the testimony reviewed at the suppression hearing, we accept the government's proffer to the effect that a grenade was discovered on the morning of March 18, 1992, while the agents were preparing an inventory of seized property. The grenade was inside the briefcase. See Government's Reply Memorandum filed on September 19, 1994, Docket Document No. 136 at 4. The defendant seeks to suppress the fruits of the search.
II.
Summary of the Parties' Contentions
The government claims that the non-verbal statement elicited from the defendant should not be suppressed because the same was the product of the split second occurrences from the arrest to the questioning and that the otherwise spontaneous attempt to identify the owner of the weapon falls within the Quarles exception to the Fifth Amendment, which guarantees that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The government argues that "public safety" considerations would have entitled the agents to ask if the defendant had any other weapons hidden in his proximity and that such entitlement validated the specific question regarding the Browning pistol. The defendant claims that once he was handcuffed and arrested, and the situation was under the control of the FBI, the Miranda warnings were a prerequisite to any custodial interrogation.
Regarding the hand grenade, the pistol clips and the ammunition, the government claims that the search leading to the discovery of such items was done with probable cause incidental to a lawful arrest and that it was a valid warrantless search. The government alleges that the vehicle was not registered to the defendant, that they saw him place the briefcase in the vehicle just before his arrest, and that it was proper and lawful to retrieve it after the arrest and account for its contents. The government also claims that agents were justified in searching the vehicle and the briefcase after they removed both objects from the scene of the arrest and after their arrival at the Federal Building. Lighting conditions at the scene of the arrest and the crowd gathering around, made it impractical to conduct the search at the arrest scene. The prosecution also points out that the agents were aware that the defendant is a convicted felon and a known member of "Los Macheteros", a clandestine Puerto Rican terrorist group which has claimed responsibility for armed robberies and terrorist bombings. The agents were also aware of the fact that Colón-Osorio was being sought in connection with the 1983 armed robbery of $7.2 million from the Wells Fargo depot in Hartford, Connecticut. He was also being sought for bond default in 1990 and was known to possess automatic weapons and explosives. The defendant was considered by the FBI to be armed and dangerous. A reward of up to $75,000 was offered for information leading to his arrest or that of his Hartford codefendant Filiberto Ojeda-Ríos. Ojeda-Ríos remains a fugitive to this day. See Wanted Flyer No. 547 dated February 5, 1991, Defendant's Exhibit 2, and testimony of Agents Spencer, Roldán, and Fraticelli.
*775 The defendant claims that several factual questions remain unresolved and that the government has failed to comply with its burden of proof in a warrantless search scenario. Colón-Osorio also alleges that the government's attempt to justify the search of March 17 and 18, 1992, which led to the discovery of the pistol clips, ammunition, and grenade, as an inventory search is improper and that the searches and seizures were not incidental to defendant's arrest, but at a different place and time, after defendant was in custody. He also alleges that if the vehicle was indeed searched at the location of arrest, probable cause had to be demonstrated to validate the warrantless intervention.
III.
Chronology of Events
We first establish the chronology of events by making reference to the surveillance log kept by the FBI for the date in question, March 17, 1992. Defendant's Exhibit 3 and the testimony of agents Spencer, Roldán, and Fraticelli. At about 1:40 p.m. a group of agents spot-checked the vicinity of the Crystal House Condominium and San Francisco Hospital looking for a white Toyota 4Runner with Puerto Rico license plate 93C302. At about 2:06 p.m. the vehicle in question was found parked in front of the Crystal House Building across from the San Francisco Hospital in the De Diego Avenue, Río Piedras, Puerto Rico, facing east. From that moment until 8:12 p.m., the Toyota was kept in constant surveillance. At about 8:12 p.m., Luis A. Colón-Osorio was observed leaving the condominium and leading directly towards the Toyota 4Runner. The defendant was positively identified by FBI S/A Miguel Aponte-Dávila, who was familiar with the defendant and the Hartford, Connecticut Wells Fargo prosecution. Colón-Osorio was carrying what appeared to be a cloth briefcase, which he allegedly placed in the Toyota's front seat.[1] The agents observed that simultaneously, a Kentucky Fried Chicken delivery truck stopped parallel to the Toyota facing west and presumably pointed the flat tire to Colón-Osorio. Colón-Osorio opened the driver-side door, entered and exited the vehicle. The agents observed that when he exited the Toyota, he no longer had with him the briefcase. The defendant then walked towards the rear of the vehicle and opened the tailgate in order to pull out the spare tire. At this time, two agents tackled the defendant, and while on the floor, he was handcuffed and arrested. Immediately thereafter a Browning Hi-Power 9mm pistol was found within arm's reach of the defendant.
At about 8:16 p.m., Colón-Osorio was taken away from the area of the arrest and the Toyota 4Runner remained at the original location where the agents retrieved the briefcase located at the passenger seat. The briefcase was seized by the agents and brought to the Federal Building in Hato Rey while the Toyota was simultaneously towed to the same location. This happened at 9:35 p.m.
Custody of the vehicle was transferred to FBI S/A J.M. Gaffney at 10:15 p.m. and a warrantless search of the vehicle and the briefcase was carried out between 10:15 p.m. and 10:30 p.m. See Defendant's Exhibit 4, FBI form 302 containing a list of items seized by investigating agents in the search. The court notes that among the items seized, the briefcase, a maroon vinyl carry-on bag/valise is the first item listed. No mention is made of the grenade.
According to the Government's Reply Memorandum filed on September 19, 1994, Docket No. 136 at 4, the following happened:
Due to darkness and the gathering of a crowd and the incipient unruliness due to the traffic jam, the agent's security concerns caused the removal, by towing, of the Toyota Fourrunner truck to the federal parking lot in Hato Rey. There, they conducted an inventory search of the vehicle which resulted in the seizure of the items described in Docket entry 29. The ammunition charged in the indictment was also *776 discovered in additional magazines (clips) for the pistol. These items were taken out of the vehicle for safekeeping and due to the lateness of the hour no other examination was made of them at that time. The next day, March 18, 1992, much to the agent's chagrin, while conducting an inventory of the items enclosed in the maroon satchel/briefcase, a grenade was discovered within a small leather bag inside the briefcase. There were no warrants requested at any time, except on March 19, 1992, when a warrant for the search of the vehicle was requested and authorized. The warrant authorized the search of the vehicle for fingerprints and explosive residue.
IV.
Discussion
A. Admissibility of the non-verbal statement
The Fifth Amendment guarantees that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court extended the Fifth Amendment privilege against compulsory self incrimination to individuals subjected to custodial interrogation by the police. The Court decided that interrogation in certain custodial circumstances is inherently coercive and held that statements made under those circumstances are inadmissible unless the arrested citizen is specifically informed of his "Miranda" rights and freely decides to forego the rights and respond to questions.
In New York v. Quarles, 467 U.S. 649, 656, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984), the Supreme Court adopted a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved.[2]
In Quarles, a suspect was arrested in a supermarket setting. The police had suspicion that just before the arrest, the suspect had discarded a firearm somewhere in the supermarket, where a third party could gain access to the loaded weapon. The hidden gun posed great danger to the public safety. An accomplice might make use of it, a customer, child, or employee might later come upon it. The Supreme Court allowed the suspect's interrogation without Miranda warnings and his answer about the place where he discarded the gun. The Miranda warnings would have deterred a sincere response from the suspect. Public safety considerations required the allowance of the question and the answer to save the public from the danger of a discarded weapon in a public place.
The situation in this case is quite different from Quarles. Although the agent's motivation was honest, the fact remains that Colón-Osorio had been handcuffed and safely arrested. The gun had been seized by the FBI agents and the arrest scene was under the agents' control. The direct and circumstantial evidence pointed to the fact that the Browning pistol was Colón-Osorio's property. Under the circumstances, if there was any need to interrogate the defendant, the interrogation had to be preceded by the Miranda warnings and by his decision to forgo his rights. The Government has failed to point out any case in which such interrogation is permissible. As stated in Quarles, police officers should determine almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit an admission from a suspect. Quarles, 467 U.S. at 658-59, 104 S.Ct. at 2632-33. Here, the only purpose served by the question posed to Colón-Osorio was to elicit an admission. His non-verbal admission was improperly obtained and therefore, must be suppressed.
B. Admissibility of the Fruits of the Warrantless Search
An arresting officer may search the arrestee's person to protect himself, discover and remove weapons and to seize evidence to *777 prevent its concealment and destruction, and may search an area within the immediate control of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The reasonableness of a warrantless search incident to arrest depends upon the facts and circumstances and the total atmosphere of the case. According to Chimel, those facts and circumstances must be viewed in light of established Fourth Amendment principles, and the only reasoned distinction is one between (1) search of the person arrested and the area within his reach, and (2) more extensive searches. 395 U.S. at 765-66, 89 S.Ct. at 2041-42.
In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court held that when a policeman has made a lawful custodial arrest of the occupant of an automobile he may, as a contemporaneous incident to the arrest, search the passenger compartment of the vehicle and may also examine the contents of any container found within the passenger compartment and such container, if capable of folding another object, may be searched whether it is open or closed. The Belton exception allowing a warrantless search is governed by the Chimel rules outlined above. The search of the arrestee and of his "grabbing area" must serve the purpose of discovering and removing weapons and to seize evidence. These efforts must be directed to prevent concealment and destruction of evidence. If the scene of the arrest offers no such risks, the exception is not triggered inasmuch as the facts and circumstances and the total atmosphere of the situation allows for the achievement of the same goal through traditional means including a search warrant. More extensive searches or beyond the boundaries specifically authorized by Belton cannot be justified on the basis of an otherwise legal arrest.
The Belton doctrine has been interpreted by federal appellate courts as requiring consistency with Chimel. In United States v. Burnette, 698 F.2d 1038, 1046-50 (9th Cir.1983), the Ninth Circuit reviewed a factual scenario similar in many respects to the one under consideration. The Court of Appeals considered a case where a purse found in a Belton vehicle search was searched contemporaneously with the arrest and later subjected to a more thorough search at the police station. As in the case at bar, during the search of the police station, additional evidence apparently not discovered in the initial search was found. The Court of Appeals decided that it is settled Fourth Amendment doctrine that a police officer may, incidental to a lawful arrest, conduct a contemporaneous search of the arrestee's person and of the area into which the arrestee might reach to retrieve a weapon or destroy evidence. Containers found within the "grabbing area" may also be searched contemporaneously with the arrest. Where such container is not searched immediately but is taken to the police station and searched later, a warrant is required. Burnette, 698 F.2d at 1049. See also United States v. Monclavo-Cruz, 662 F.2d 1285 (9th Cir.1981).
In the present case, Colón-Osorio's briefcase was not searched immediately upon his arrest in some sort of cursory fashion to be later subjected to a more thorough search at the Federal Building. The testimony received at the suppression hearing and the chronology of events show that S/A Gaffney removed the briefcase and brought it to the Federal Building, and at the Federal Building between 10:15 and 10:30 p.m. March 17, 1992, a search was made of the Toyota vehicle and the briefcase. The Government concedes that it was not until March 18, 1992 that the agents looked more carefully into the various briefcase compartments and found the grenade.
While we believe that a search contemporaneous with the arrest would have been valid if the incriminating evidence in the briefcase and vehicle would have been discovered, the subsequent search with no contemporaneous initial search cannot be justified. Accordingly, we adhere to the view that once an item in an individual's possession has been lawfully seized and searched, subsequent searches of that item, so long as it remains in the legitimate uninterrupted possession of the police, may be conducted *778 without a search warrant. If on the contrary, the search is first done in the police station and away from the contemporaneity of the arrest, a search warrant must be obtained for the protection of the individual's privacy interest. In the case where the search is not contemporaneous, the defendant's expectation of privacy in the container survives the exigent circumstances justifying a warrantless search. Burnette, 698 F.2d at 1050.[3]
The Government attempts to justify the validity of the search as an inventory search. The First Circuit has decided that such claim requires definite proof that the evidence would have been admitted regardless of any overreaching. United States v. Infante-Ruiz, 13 F.3d 498, 503-04 (1st Cir. 1994). The Government bears the burden of showing by reference to the facts that the items would have been inevitably discovered. In addition, to be permissible under the Fourth Amendment, warrantless inventory searches must be conducted according to standardized objective procedures. Infante-Ruiz, 13 F.3d at 503. Any discretion must be exercised according to standard objective criteria and on the basis of something other than suspicion. While it is quite easy to justify that the items would have inevitably been discovered, the Government failed to introduce any evidence that their actions were controlled by established procedures and standardized criteria as required by Supreme Court case law. See Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 1635-1636, 109 L.Ed.2d 1 (1990); Colorado v. Bertone, 479 U.S. 367, 374 n. 6, 375, 107 S.Ct. 738, 742 n. 6, 742, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 372-75, 96 S.Ct. 3092, 3098-3100, 49 L.Ed.2d 1000 (1976); Infante-Ruiz, 13 F.3d at 503. To our surprise, no officer testified that a standard policy dictated that the procedure was to seize the car and its contents, tow it away from the gathering crowds, and transport it to the FBI headquarters for search purposes. As in Infante-Ruiz, the Government did not introduce into evidence a written policy covering those aspects. No officer testified that the circumstances of the moment so justified and that at least an oral policy or established routine existed. In the absence of such evidence, the Government failed to carry its burden of showing that the items in question would have been inevitably discovered.[4]
Lastly, the government hints that the seizure can be saved on probable cause grounds. See Infante-Ruiz, 13 F.3d at 502. While it was quite easy to establish the defendant's relationship to clandestine terrorist groups and weapons or explosives, Defendant's Exhibit 2, in order for probable cause to search to exist, the agents must also have reasonably trustworthy information of supporting facts and circumstances such as would persuade a person of reasonable caution to believe the search is justified. Infante-Ruiz, 13 F.3d at 502. Here, the Government stipulated at the suppression hearing having no such information other than the general knowledge on the part of the agents that Colón-Osorio was related to a clandestine terrorist group which had a reputation of using explosives and weapons. No particular facts were at hand, and the lack of contemporaneity between the arrest and the search, only served to reinforce the defendant's Fourth Amendment rights. Suspected reputation, standing alone, is not enough to suggest probable cause. United States v. Harris, 403 U.S. 573, 582, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971) and Infante-Ruiz, 13 F.3d at 503. The items objects of counts two and three of the indictment are now suppressed.
V.
Conclusion
The court suppresses the non-verbal statement made by the defendant admitting ownership *779 and control over the Browning pistol. The court also suppresses the items object of counts two and three inasmuch as they resulted from a search in contravention of Fourth Amendment federal caselaw. The case will be tried on counts 1, 4 and 5.
IT IS SO ORDERED.
NOTES
[1] The defendant filed an affidavit in support of his motion to suppress where he avers that the briefcase was left by him in the Toyota 4Runner when he first parked the vehicle earlier that day. He denies having carried the briefcase immediately before his arrest. Docket Document No. 138.
[2] We are certain that the interrogating agent's motivation was honest. In the heat of the moment, and in a split second, the question was uttered, and an admission was elicited.
[3] The court notes that the Government's presentation of its side of the story at the suppression hearing did not include testimony of the agents that dealt directly with the search of the vehicle and the briefcase and the subsequent search of March 18, 1992. We have looked into the FBI 302 forms and can only find support for the factual scenario outlined in this opinion and order.
[4] The Government cannot claim surprise as to what the court would have expected regarding such specific proof. The Infante-Ruiz decision is recent and well known in this district. The defendant's memoranda clearly pointed out the standard and the court prodded the Government, indicating the need of such evidence.
|
365 S.E.2d 395 (1987)
STATE of West Virginia
v.
Frank NEARY.
No. 17303.
Supreme Court of Appeals of West Virginia.
December 21, 1987.
Rehearing Denied February 3, 1988.
*397 J. Bradley Russell, Asst. Atty. Gen., for plaintiff.
Rudolph L. diTrapano, Rebecca A. Baitty, Charleston, for defendant.
*396 MILLER, Justice:
Frank Neary, a member of the Putnam County Commission, was convicted of being or becoming pecuniarily interested in a contract over which he may have had some voice or influence, and of accepting a pecuniary benefit, a telephone access code card, for having voted on a county telephone contract. He was ordered to pay fines totaling $5,500 for the two misdemeanor convictions and was removed from office as required by statute. His motion for a judgment of acquittal or, in the alternative, for a new trial was denied, and upon appeal he assigns as error the sufficiency of the evidence as to both offenses, the sufficiency of the indictments, and the rulings of the trial court on a number of instructions.
I.
The defendant assumed office as a county commissioner on the Putnam County Commission in January, 1983, following the 1982 general election. Since 1972, he had been performing various maintenance services for the Kanawha Orchard Public Service District (PSD) located in Putnam County, including marking and repairing water lines and reading water meters. He was paid for these services by the PSD, which is a governmental entity authorized by the Putnam County Commission and regulated as a public utility by the West Virginia Public Service Commission. After assuming office in 1983, he continued to perform maintenance services for the PSD.
It was stipulated that in the year before his indictment, he made approximately $30,000 a year from this contract work. On September 4, 1985, he was indicted by a grand jury in Putnam County for having a pecuniary interest in a contract in violation of W.Va.Code, 61-10-15 (1977).[1]
The defendant contends that the evidence is, as a matter of law, insufficient to support a conviction under the statute because the State did not prove beyond a reasonable doubt that he had "any voice, influence, or control as a county commissioner over the ... PSD's contract with himself." The defendant argues there must be a connection between the official's action as a public official and his pecuniary interest in the proceeds of a contract or service. Merely having some possible voice, influence or control is not enough.
The State argues the law does not require the prosecution to show an actual exercise of influence, and that a violation of the conflict of interest statute can be proven by showing the public official became *398 or remained interested in the proceeds of a contract or service in which, by virtue of his office, he may have any voice, influence or control.
The State points to the fact that the defendant nominated and voted for the PSD member who replaced his wife on the PSD. The defendant's wife had resigned when the defendant assumed his office on the county commission. The State also points to evidence which reveals that the defendant and another member of the Commission, over the objection of the remaining member, voted to remove all the members of another PSD, the Putnam Union Public Service District. The State argues that this was done under the Commission's statutory power to remove members of the PSD and would obviously indicate to the PSD commissioners the control exercised over them.[2]
In this same vein, the State argues that a county commissioner has the power to influence contractual transactions of a PSD by virtue of the broad powers county commissions have over public service districts under the provisions of W.Va.Code, 16-13A-1, et seq. This authority includes the power to create, enlarge or reduce the area of a public service district,[3] and to appoint[4] and remove[5] PSD members.
We believe the State's position is consistent with the intent of the legislature as reflected by the broad language of the statute and our precedents interpreting it. Although our decisions applying the statute have been rendered in the context of a removal proceeding, we believe they are nonetheless applicable in a criminal proceeding to determine the legislative intent and purpose of the statute. There is little, if any, leeway present to construe the statute since, as stated in Alexander v. Ritchie, 132 W.Va. 865, 871, 53 S.E.2d 735, 739 (1949), "Code, 61-10-15, implements the public policy of this State, and its provisions are clear and unambiguous. Although harsh, its objects and purposes are salutary."
The misdemeanor offense created by W.Va.Code, 61-10-15, does not require a showing of criminal intent. Alexander v. Ritchie, 132 W.Va. at 872, 53 S.E.2d at 740; Hunt v. Allen, 131 W.Va. 627, 635, 53 S.E.2d 509, 514 (1948). See also, Arbogast v. Shields, 123 W.Va. 167, 14 S.E.2d 4 (1941). Commission of the prohibited act, here merely being pecuniarily interested in the proceeds of a contract over which one may have any voice, influence or control, constitutes a violation of the statute.
This Court has consistently recognized the broad purpose of the conflict of interest statute as is reflected in the following language of Jordan v. McCourt, 135 W.Va. 79, 86, 62 S.E.2d 555, 560 (1950):
"The public policy of this State, as evidenced by Code, 61-10-15, as amended, is not directed against actual fraud or collusion, but is for the purpose of preventing those acts and eliminating any opportunity therefor. As this Court said in Alexander v. Ritchie, [132 W.Va. at 871, 53 S.E.2d at 739 (1949)] ...: `The purpose of the statute is to protect public funds, and give official recognition to the fact that a person cannot properly represent the public in transacting business with himself. To permit such conduct would open the door to fraud. The statute *399 is designed to remove from public officers any and all temptation for personal advantage.'"
See also, 63A Am.Jur.2d, Public Officers and Employees § 338 (1984).
The decision in Fisher v. Jackson, 107 W.Va. 138, 147 S.E. 541 (1929), also typifies this Court's decisions implementing the public policy purpose of the statute. There, a member of a county board of education had performed carpentry services in connection with a construction project that had begun before his induction into office. His employment was by the contractor, a Mr. Herring, who had contracted with the other two members of the board to supervise the project. Payment for the work was made by warrant to Herring. The defendant voted to authorize the payment and eventually presented it for payment and received some $47.00 for his services. The defendant board member's argument was that he worked for Herring, not the board of education, and was thus not subject to removal. The Court rejected this theory:
"Even if this were true, the statute covers such a situation. A member of the board will not be permitted to participate in the letting of a contract to one, and then derive benefit indirectly therefrom by working for the party obtaining the contract. The plain mandate of the statute denies him the right to receive a benefit by indirection where he may not profit directly.
"The purpose of the statute is to safeguard the public purse. It extends to all contracts or service in which a member `may have any voice or control'. To permit a member of a district school board, by reason of non-action on his part in regard to a particular matter, to receive pecuniary benefit therefrom, either directly or indirectly, would defeat the very purpose of the statute, for it would permit connivance on the part of the several members and the awarding of contracts so as to inure indirectly to their benefit." 107 W.Va. at 140, 147 S.E. at 542.
We believe the State proved a violation of the statute. Although we acknowledge that any ambiguity in a criminal statute must be strictly construed against the State,[6] the language of the statute brings the defendant's conduct clearly within its ambit. The statute is violated if one "be or become" pecuniarily interested in the proceeds of any contract or service over which as a member of a county commission he may have any "voice, influence or control." His contract with the PSD undoubtedly was a pecuniary interest. The only open question is whether his official position gave him any "voice, influence or control" over the PSD.
There can be little doubt that, as we have earlier noted, the Commission does by statute exercise control over a PSD. We have not had occasion to consider this precise factual setting. However, in other jurisdictions where a similar broad conflict of interest statute exists, courts have concluded that such indirect relations are covered. In Kruse v. Streamwood Utilities Corp., 34 Ill.App.2d 100, 180 N.E.2d 731 (1962), village trustees had granted a franchise to the utility. Several of the trustees were members of an engineering firm that had a contract with the utility. This was found to be a conflict of interest.
Kruse relied heavily on United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961), where the government successfully defended against a contract suit by showing its principal negotiator had a conflict of interest under the federal statute. The Supreme Court upheld this result even though the government knew of the potential conflict. The Supreme Court spoke to the general purpose of conflict of interest statutes: "The obvious purpose of the statute is to insure honesty in the Government's business dealings by preventing federal agents who have interests adverse to those of the Government from advancing *400 their own interests at the expense of the public welfare." 364 U.S. at 548, 81 S.Ct. at 308, 5 L.Ed.2d at 288.
It also answered the argument that without requiring a showing of some specific pecuniary gain this "would be a violation of the time-honored canon that penal statutes are to be narrowly construed," by stating: "But even penal statutes must be `given their fair meaning in accord with the evident intent of Congress.' ... In view of the statute's evident purpose and its comprehensive language, we are convinced that Congress intended to establish a rigid rule of conduct...." 364 U.S. at 550-51, 81 S.Ct. at 309-10, 5 L.Ed.2d at 289.
In Mississippi Valley, the government agent was employed part-time to assist in negotiating a contract for the construction and operation of an electric power plant. The government contracting agency was the Atomic Energy Commission. The agent was a vice president and director of a large bank which ultimately provided some of the financing for the contractor who was building the plant under the government contract. The Supreme Court rejected the argument that because the agent had no authority to sign the building contract and that his negotiations preceded and were independent of the subsequent financing agreement, he had not transacted any business within the meaning of the statute,[7] stating:
"The question is not whether Wenzell [the agent] was certain to benefit from the contract, but whether the likelihood that he might benefit was so great that he would be subject to those temptations which the statute seeks to avoid.
* * * * * *
"[T]he statute establishes an objective, not a subjective, standard, and it is therefore of little moment whether the agent thought he was violating the statute, if the objective facts show that there was a conflict of interest." 364 U.S. at 560-61, 5 L.Ed.2d at 294-95, 81 S.Ct. at 314-15.
The reasoning of Mississippi Valley has influenced a number of state courts in the construction of their conflict of interest statutes. E.g., People v. Watson, 15 Cal. App.3d 28, 92 Cal.Rptr. 860, cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 88 (1971); People v. Savaiano, 31 Ill.App.3d 1049, 335 N.E.2d 553 (1975); Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983); State v. Stoehr, 134 Wis.2d 66, 396 N.W.2d 177 (1986).
The evidence reveals that the defendant acted affirmatively in nominating and voting for a present member of the PSD who, in that capacity, is in a position to oversee the performance of the defendant's services and to authorize payment therefor. Furthermore, the power that a county commission exercises over a PSD gives it considerable influence. These powers are not abstract, but point to the direct control that the commission can exercise over a PSD. Indeed, as the defendant admitted on cross-examination, he and another member of the commission had removed the members of another PSD from office. This could hardly have gone unnoticed by the PSD which had its contract with the defendant.
For these reasons, we conclude that upon becoming a member of a county commission, a person who is pecuniarily interested in the proceeds of any contract or service with a public service district violates the *401 conflict of interest statute, W.Va.Code, 61-10-15, because such person by virtue of the position has some voice, influence or control over the continuation of the contract.
II.
The defendant next argues that the trial court erred in denying his motion to dismiss the conflict of interest indictment as insufficient, or to grant a bill of particulars. The general test for the sufficiency of an indictment is set forth in Syllabus Point 3 of State v. Hall, ___ W.Va. ___, 304 S.E.2d 43 (1983):
"An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based."
See also, State v. Nester, ___ W.Va. ___, 336 S.E.2d 187 (1985); State v. Manns, ___ W.Va. ___, 329 S.E.2d 865 (1985).
We conclude that the conflict of interest indictment is sufficient[8] and that the trial court did not err in denying the defendant's motion for a bill of particulars. The indictment is worded in language substantially equivalent to the statutory phraseology. The fact that it does not use the words pecuniary interest is not sufficient alone to invalidate the indictment, since there can be no doubt that the defendant was fully informed of the particular offense charged, and the nature of his interest.
The decision in Myers v. Nichols, 98 W.Va. 37, 126 S.E. 351 (1925), heavily relied on by the defendant, is distinguishable. There, a twenty-two page petition had been filed to remove a county commissioner from office which contained numerous allegations of irregular acts committed during a three year time period. One of the charges was that a business partially owned by the commissioner had sold merchandise and supplies to the county.
The court held this allegation of the petition was insufficient, but as subsequently explained in Hunt v. Allen, 131 W.Va. 627, 634, 53 S.E.2d 509, 514 (1948), the Myers case simply "held in effect that the petition was insufficient to connect the defendant... with the transaction alleged to be a violation of the statute...." Here the indictment plainly informed the defendant that he was charged with becoming and remaining interested in the proceeds of providing services to the PSD.
There was no need in this case to grant a bill of particulars outlining the specific acts or conduct relied on by the prosecution under the indictment, since the act charged by the indictment was simply that the defendant by virtue of assuming office, had become pecuniarily interested in the proceeds of a contract in which by virtue of his position he may have had some influence or control. It was this contract that was the indictable event and there was no need for amplification by way of a bill of particulars. See State v. Greater Huntington Theatre Corp., 133 W.Va. 252, 55 S.E.2d 681 (1949). Moreover, a trial court's ruling on a motion for a bill of particulars is largely discretionary. E.g., State v. Ashcraft, ___ W.Va. ___, 309 S.E.2d 600 (1983); State v. Greer, 130 W.Va. 159, 42 S.E.2d 719 (1947).
The defendant objected to State's Instruction No. 3,[9] which in general terms *402 summarizes the relationship between the county commission and a public service district, because the State did not prove the defendant became pecuniarily interested in the proceeds of a contract as the result of some action he took in his official capacity. As previously discussed, the State under the conflict of interest statute does not have to prove that the defendant became pecuniarily interested in the proceeds of a contract or service as a result of some act he took as a public official. It is sufficient if he had "any voice, influence or control" under W.Va.Code, 61-10-15. This portion of the defendant's challenge to the instruction is thus without merit.
The defendant further argues that even if it was proper to give the general instruction, State's Instruction No. 3 falsely describes the relationship between the county commission and a public service district. The defendant's principal claim is that the instruction does not fully state the law concerning the limited power of a county commission to remove a PSD member. W.Va.Code, 16-13A-3a, set forth in Note 5, supra, empowers the county commission to remove a PSD member for consistent violations of the law applicable to public service districts and for "reasonable cause." This is defined to include such conduct as the continued failure to attend meetings, to diligently pursue the objectives of the PSD, to perform any duty prescribed by law, or for any misconduct in office.
The issue here is not the extent of the control exercised, but the fact that control is present under the statutory scheme. Consequently, the failure to fully define all of the statutory circumstances that would warrant discharge was not required.
The defendant also objected to State's Instruction No. 6[10] which defines the elements of proof necessary to obtain a conviction under the conflict of interest statute. The defendant's challenge to this instruction is based upon the same arguments made in regard to the sufficiency of the indictment and the sufficiency of the evidence. Having rejected those arguments earlier in this opinion, we find no merit in these contentions.
The defendant also contends the trial court erred in not giving Defendant's Instruction No. 3, as offered, which would have instructed the jury that a county commission has no direct or indirect influence or control over public service district boards and their award of contracts, hiring of employees, or other operational details. We find no error in the trial court's refusal to give this instruction as this was a misleading and incorrect statement of the law. It completely ignored the direct and indirect influence given by statute over the PSD. Our consistent holding on this issue is reflected in Syllabus Point 3 of State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978):
"Instructions in a criminal case which are confusing, misleading or incorrectly state the law should not be given."
See also Syllabus Point 2, State v. Saunders, ___ W.Va. ___, 330 S.E.2d 674 (1985).
Moreover, the defendant's theory of the case was submitted to the jury. The jury was instructed that they must find the defendant not guilty unless they were convinced *403 beyond a reasonable doubt, that because of his official position as a member of the county commission, he may have had any voice, influence or control over the actions of the PSD in awarding contracts or providing for services to the PSD, and that the defendant's own employment by the PSD could have been influenced or controlled by the defendant because of his position on the county commission.
III.
The defendant also challenges his conviction under W.Va.Code, 61-5A-4, a provision of the Bribery and Corrupt Practices Act.[11]
The facts surrounding this offense are also simple and not in dispute. In May, 1984, the commission was approached by sales representatives of Telemarketing Communications of West Virginia (TMC) with regard to the purchase of a long-distance discount telephone service. After a presentation by these representatives, the commission decided to purchase the telephone services which would permit various county government offices to dial a computer in Charleston to place long-distance calls more economically. The agreement provided for the county to purchase several code numbers for use in dialing the centralized computer.
After the commission made the decision to purchase the telephone services and the sales representatives had left the commission meeting, one of them remembered that they had forgotten about the bonus telephone code cards. These were normally given without charge to business purchasers who wished to use them from their residential telephones. The TMC representative then reentered the commission meeting and inquired whether the commissioners ever had occasion to conduct county business using their home telephones. Upon being advised that this occasionally occurred, each commissioner was given a code number on a plastic card for use with his residential telephone.
The testimony indicated that such cards were given as a matter of course to business purchasers. The record also shows that TMC competitors also gave free telephone access cards for use on residential telephones. The evidence is undisputed that the defendant did not know he would get the free card when he voted for the telephone services. Most importantly, he could not utilize the card in any event because he did not have a touchtone telephone.
The defendant argues, among other things, that the evidence is insufficient to prove beyond a reasonable doubt that he accepted a pecuniary benefit. A "pecuniary benefit" is, as the defendant points out, defined in W.Va.Code, 61-5A-2(8),[12] to include, tangible or intangible property, "or anything else the primary significance of which is economic gain." The defendant argues that the card containing the residential access code does not have as its primary significance economic gain. The *404 defendant stresses the fact that the purpose of the defendant having the card was to enable him to conduct official county business from his home and, as such, it cannot be considered as a pecuniary benefit within the meaning of the statute.
We agree with the defendant's argument that the acceptance by a county commissioner of a card containing a telephone access code does not constitute a "pecuniary benefit" as defined in W.Va.Code, 61-5A-2(8), where the purpose of the card is to facilitate a commissioner's ability to perform the county commission's business.[13] More fundamentally, it is not disputed that the card could not be used by the defendant as he did not have the right type of telephone in his home.
Because we find the defendant's conviction of having accepted a pecuniary benefit must be reversed for insufficient evidence, we conclude that it is unnecessary to address his other assignments of error concerning this offense.
For the foregoing reasons, the defendant's conviction under the conflict of interest statute is affirmed; however, his conviction for accepting a pecuniary benefit is reversed for insufficient evidence, and the case is remanded to the trial court for the entry of a judgment of acquittal on that charge under Rule 29(a) of the West Virginia Rules of Criminal Procedure.
Affirmed in part, reversed in part, and remanded with directions.
NOTES
[1] W.Va.Code, 61-10-15 (1977) provides, in relevant part:
"It shall be unlawful for any member of a county commission ... or any member of any other county or district board, or for any county or district officer to be or become pecuniarily interested, directly or indirectly, in the proceeds of any contract or service, or in furnishing any supplies in the contract for, or the awarding or letting of, which as such member, officer, secretary, supervisor, superintendent, principal, or teacher, he may have any voice, influence or control.... Any person or officer named who shall violate any of the foregoing provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, be fined not less than fifty nor more than five hundred dollars, and may, in the discretion of the court, be imprisoned for a period not to exceed one year. In addition to the foregoing penalties, any such officer shall be removed from his office...."
[2] It appears that the removal of the Putnam Union Public Service District commissioners was later reversed by the Circuit Court of Putnam County.
[3] W.Va.Code, 16-13A-2.
[4] W.Va.Code, 16-13A-3.
[5] W.Va.Code, 16-13A-3a provides:
"The county commission or any other appointive body creating or establishing a public service district under the provisions of this article may remove any member of the governing board thereof for consistent violations of any provisions of this article, for reasonable cause which includes, but is not limited to, a continued failure to attend meetings of the board, failure to diligently pursue the objectives for which the district was created or failure to perform any other duty prescribed by law or for any misconduct in office, or upon written petition signed by twenty-five percent of the registered voters who reside within the limits of such proposed public service district: Provided, that such appointee shall be removed only after a full hearing of any complaint presented against him and after a ten-day notice of such hearing."
[6] We recognized in State ex rel. Anderson v. Board of Educ., 160 W.Va. 208, 216, 233 S.E.2d 703, 708 (1977), that W.Va.Code, 61-10-15 is a penal statute "which requires strict construction." See also Dials & Smith v. Blair, 144 W.Va. 764, 111 S.E.2d 17 (1959).
[7] The federal statute at that time was 18 U.S.C. § 434, which provided:
"Whoever, being an officer, agent or member of, or directly or indirectly interested in the pecuniary profits or contracts of any corporation, joint-stock company, or association, or of any firm or partnership, or other business entity, is employed or acts as an officer or agent of the United States for the transaction of business with such business entity, shall be fined not more than $2,000 or imprisoned not more than two years, or both."
It is noted that this statute did not provide for termination of a contract where a conflict of interest led to its formation. The Supreme Court in Mississippi Valley, supra, held that such result was warranted in order "to protect the public from the corrupting influences that might be brought to bear upon government agents.... This protection can be fully accorded only if contracts which are tainted by a conflict of interest on the part of a government agent may be disaffirmed by the Government." 364 U.S. at 563, 81 S.Ct. at 316, 5 L.Ed.2d at 296.
[8] The conflict of interest indictment under W.Va.Code, 61-10-15, reads as pertinent here:
"Frank D. Neary, in the one (1) year next preceeding [sic] the return of this indictment, and in the said County of Putnam, did unlawfully, as a member of the Putnam County Commission, become and remain interested in the proceeds of providing a service to the Kanawha Orchard Public Service District, in which and by virtue of his office he may have had, then and there, any voice, influence or control."
[9] State's Instruction No. 3 provides:
"The Court further instructs the jury that the provisions of Chapter 16, Article 13A may be considered when deciding upon the verdict. Specifically, a Public Service District is created by a County Commission pursuant to W.Va.Code [Section] 16-13A-2, and that under this same code provision the County Commission retains the power to enlarge, reduce or dissolve any such public service district. Under W.Va.Code [Section] 16-13A-3 the County Commission has the power to appoint new members to the governing board of the public service district, and pursuant to W.Va. Code [Section] 16-13A-3a the County Commission has the power to remove such board members. Further, W.Va.Code [Section] 16-13A-10 requires the public service district to forward a copy of its budget, upon adoption, to the County Commission, and under Code [Section] 16-13A-11, the public service district is required to furnish a copy of its yearly audit to the County Commission within thirty (30) days of its completion."
[10] State's Instruction No. 6 reads:
"The Court instructs the jury that if you find beyond a reasonable doubt that (1) Frank Neary as a Putnam County Commissioner, (2) between September 5, 1984, and September 4, 1985, (3) in Putnam County, West Virginia (4) was pecuniarily interested in the proceeds of providing a service to the Kanawha Orchard Public Service District, (5) which by virtue of his being a County Commissioner he may have any voice, influence or control over such decision by Kanawha Orchard Public Service District to contract with him, then you should find Frank Neary guilty as charged in Indictment 85-M-59.
"If the jury has a reasonable doubt as to any one or more of the elements, then you should find the defendant not guilty."
[11] W.Va.Code, 61-5A-4, as material here, provides:
"(a) It shall be unlawful for any person to solicit, accept or agree to accept, directly or indirectly, a pecuniary benefit for: (1) Having engaged in official action as a public servant; or (2) Having violated a legal duty as a public servant. (b) It shall also be unlawful for any person to offer, confer or agree to confer, directly or indirectly, a pecuniary benefit, the receipt of which is prohibited by subsection (a) of this section."
[12] The definitional section of the Bribery and Corrupt Practices Act, W.Va.Code, 61-5A-2(8), reads in its entirety:
"`Benefit' means a gain or advantage, or anything regarded, or which might reasonably be regarded, by the beneficiary as a gain or advantage, including a gain or advantage to any other person; and `pecuniary benefit' means a benefit in the form of money, tangible or intangible property, commercial interests or anything else the primary significance of which is economic gain; but the terms `benefit' and `pecuniary benefit' shall not be construed so as to include (a) salary, fees and other compensation and expenses paid by the government or political party or political party committee in behalf of which the official action or legal duty is performed, or (b) concurrence in official action in the course of legitimate compromise among public servants, or (c) wages, salary or fees or other compensation paid to a public servant when the reason for such payment is not to affect his official impartiality." (Emphasis added.)
[13] Use of an official credit card for his official business is perfectly proper. Cf. Powers v. Goodwin, ___ W.Va. ___, ___, 291 S.E.2d 466, 469 (1982) (misuse of county commission credit card for personal business). See United States v. Arthur, 544 F.2d 730, 735 (4th Cir.1976).
|
___________
No. 94-3610
___________
F. L. Thorpe & Co., Inc., *
*
Petitioner, *
*
v. *
*
National Labor Relations Board, *
*
Respondent, *
*
United Steelworkers of America, *
AFL-CIO/CLC, *
*
Intervenors. *
___________ On Petition For Review and
Cross-Application for
No. 94-3911 Enforcement of an Order of the
___________ National Labor Relations Board.
F. L. Thorpe & Co., Inc., *
*
Respondent, *
*
v. *
*
National Labor Relations Board, *
*
Petitioner, *
*
United Steelworkers of America, *
AFL-CIO/CLC, *
*
Intervenor. *
__________
Submitted: April 10, 1995
Filed: December 1, 1995
__________
Before MAGILL and HANSEN, Circuit Judges, and GOLDBERG,* Judge.
___________
GOLDBERG, Judge.
F.L. Thorpe & Co., Inc. ("Thorpe" or "the Company") petitions for
review of an order of the National Labor Relations Board ("NLRB") which
concluded that unfair labor practices committed by Company agents converted
an economic strike by the United Steelworkers of America ("the Union") into
an unfair labor practice strike. Thorpe also seeks review of the NLRB's
conclusion that once converted into an unfair labor practice strike,
actions taken by the Company failed to reconvert the strike back into an
economic strike. The NLRB has filed a cross-application for enforcement
of its order. The Union has intervened in support of the NLRB's cross-
application. The court exercises jurisdiction pursuant to 29 U.S.C. §
160(e), (f). Because we find that the NLRB erred as a matter of law in
concluding that the unfair labor practices committed by Company agents
converted the Union's economic strike into an unfair labor practice strike,
we reverse.
I. BACKGROUND
Following a hearing of this matter, the Administrative Law Judge1
("ALJ") made the following findings of fact which the NLRB panel
subsequently adopted. F.L. Thorpe & Co., 315 NLRB No. 22, at 1-2 (Sept.
30, 1994). The Company manufactures and sells Black Hills gold jewelry.
On July 27, 1990, the Union was certified as the exclusive representative
of the Company's production and maintenance employees for purposes of
collective bargaining. The
* The HONORABLE RICHARD W. GOLDBERG, Judge, United
States Court of International Trade, sitting by
designation.
1
The Honorable Burton Litvack, Administrative Law Judge.
-2-
parties met 14 times over the ensuing nine months in an unsuccessful effort
to negotiate a first contract.
On April 27, 1991, after learning that a strike was possible, the
Company's general manager, Terry Sanke, drafted a letter to all unit
employees advising them that they had a right to withhold their services
in connection with a strike, or to cross the picket line. The letter also
stated that the Company would continue to operate and that it had the right
to hire permanent replacements to perform the employees' jobs.
On April 28, 1991, Company Supervisor Judy Lamphere called employee
Susan Cox to tell her that the Union had decided to call a strike.
Lamphere also told Cox that "they" would be working and would give Cox a
ride to work, but that she had to resign from the Union in order to return
to work during a strike. Cox informed Lamphere that she had decided to
join the strike, and repeated Lamphere's remarks to at least six other
employees. There is no record evidence as to whether said conversations
were prior to or subsequent to the start of the strike.
On April 29, 1991, sixty-seven of the eighty-two unit employees
commenced a work stoppage against the Company. That same day, Terry Sanke
drafted another letter to the bargaining unit employees, advising them that
they had three options during a strike: (1) to refuse to cross the picket
line; (2) to cross the picket line; or (3) to resign from the Union and
return to work. The letter stated that employees who wanted to cross the
picket line and avoid being fined by the Union should resign from the Union
first. Sanke included with the letter a sample resignation form with
instructions for completing and returning it to the Union.
On May 11, 1991, striking employee Linda Smith called Supervisor
Carol Tribble and expressed an interest in returning to
-3-
work. Tribble told Smith that in order to return to work she first had to
sign a Union resignation form and place it in the mail. In addition,
Tribble stated that Smith's anniversary date would be pushed back for every
week she was out on the picket line.
Smith subsequently related her discussion with Tribble to fellow
striking employee Cindy Kruse. Kruse called Tribble, who stated that in
order to return to work Kruse first had to sign a Union resignation form
and place it in the mail. Tribble later told Kruse that her anniversary
date would be set back a week for every week she stayed out on strike.
Kruse decided not to return to work at that time.
The striking employees picketed the Company's plant on most if not
all days during the strike. Picket signs went up shortly after the
strike's inception. Notably, at no time during the duration of the strike
did the picket signs change in response to actions taken by Company agents;
rather, at all times the picket signs alluded solely to economic reasons
for the strike. The picket signs never indicated that the strike was
intended to be an unfair labor practice strike.
During June, July, and August of 1991, there was much shouting of
invectives and insults between the strikers, the replacement employees, and
the Company's supervisors. In particular, on several occasions the
Company's credit manager, Sandy Sanke, shouted: that the strikers did not
have jobs there anymore; that they were fired; that the strikers should go
find a job and get a life; and that a particular employee was a "jobless
wonder."
On or about August 2, 1991, Company officials learned that the Union
was alleging that Company representatives had made unlawful threats and
other comments as early as the day before the strike began. Terry Sanke
investigated the matter by speaking with the Company representatives named
by the Union. The Company
-4-
representatives all denied making illegal comments. In a letter sent to
each of the striking employees dated August 8, 1991, Terry Sanke stated
that the Company's management had not made or implied any statements that
strikers no longer had jobs with the Company, and that any information they
had to the contrary was inaccurate and should be disregarded. Sanke
further explained their rights as economic strikers. However, the ALJ
found that Sandy Sanke continued, at least throughout the month of August,
to tell strikers: that they did not have jobs; to go home; that they were
fired; and that a particular striker was a jobless wonder.
On August 27, 1991, the Union filed an unfair labor practice ("ULP")
charge with the NLRB, repeating its earlier allegations. On October 8,
1991 and January 9, 1992, respectively, the Union filed a first and second
amended ULP charge with the NLRB. Following an investigation, the Regional
Director of Region 18 of the NLRB issued an amended complaint on January
21, 1992. The amended complaint alleged that the Company violated section
8(a)(1) of the National Labor Relations Act ("the Act") by informing an
employee that she was required to resign her union membership before
returning to work if she engaged in a strike; by warning employees that
their anniversary dates would be set back one week for every week they
remained on a picket line; and by telling employees that, because they
engaged in a strike, they were no longer employed by the Company. The
amended complaint further alleged that the Company violated sections
8(a)(1) and (3) of the Act by refusing to reinstate employees, following
unconditional requests to return to work, unless they resigned their union
memberships; and, as the employees' economic strike was allegedly converted
to a ULP strike by the aforementioned conduct, by refusing to reinstate
striking employees to their former positions following unconditional offers
to return to work.
The employees' strike continued through September 1991, by the end
of which month the Company had hired and employed approximately
-5-
28 permanent replacement employees and 20 bargaining unit employees who had
either not joined the strike at its inception or who had since abandoned
the strike. On September 30, 1991, the Company sent Smith and Kruse a
letter offering them immediate and unconditional reinstatement. The letter
expressly stated that they did not have to resign their union memberships
before returning to work. The Company sent Smith and Kruse another letter
on October 7, 1991, clarifying that in addition to being reinstated, they
would be paid all back pay to which they were entitled under the Act.
On October 4, 1991, the Company mailed to every striking employee and
posted on its plant bulletin boards a letter, signed by Terry Sanke,
advising employees that resignation of union membership had never been a
condition for returning to work for the Company and that no striking
employee had been, or ever would be, discharged because they chose to
participate in the strike. The Company sent another letter to all
employees dated October 8, 1991, in which it disavowed any threat to set
back anniversary dates as well as any statements that strikers were fired
or had to resign from the Union in order to return to work; the Company
also acknowledged that if such statements were made, they were unlawful.
On October 11, 1991, the Union unconditionally offered to return its
members to work. Twenty-one former strikers whose names appeared on a
seniority list received reinstatement letters; eleven of these striking
employees subsequently accepted reinstatement.
A trial was held before the ALJ on February 25 and 26, 1992. The ALJ
found that the Company had indeed violated section 8(a)(1) and sections
8(a)(3) and (1), as alleged in the amended complaint. In particular, the
ALJ found that: (1) Tribble's statement that the strikers' anniversary date
would be pushed back and Sandy Sanke's remarks to strikers throughout the
strike violated Section 8(a)(1) of the Act; and (2) the Company's refusal
to reinstate Smith and Kruse unless they first resigned from the Union
violated Sections
-6-
8(a)(3) and (1) of the Act. However, the ALJ rejected the contention that
these ULP's prolonged the strike and thus converted it into an unfair labor
practice strike.
Upon review before a three-member panel of the NLRB ("the Board"),
the Union took exception to the ALJ's finding that the strike was not
converted into an unfair labor practice strike on May 12, 1991. The Union
further took exception to the ALJ's finding that there was no subjective
evidence that the ULP's committed by the Company motivated strikers to
prolong their work stoppage. In addition, the Company filed an exception
to the ALJ's failure to find that, even if the strike was converted into
an unfair labor practice strike, it was reconverted into an economic strike
prior to the Union's unconditional offer to return to work.
On September 30, 1994, the Board rendered a decision and order
reversing the ALJ's decision. F.L Thorpe & Co., Inc., 315 NLRB No. 22.
Relying upon both objective and subjective analyses, the Board held that
the Union's economic strike converted into an unfair labor practice strike
on or about May 12, 1991. The Board further held that the Company never
successfully reconverted the strike into an economic strike. The Company
presently challenges each of the Board's conclusions.
II. STANDARD OF REVIEW
NLRB unfair labor practice actions are formal adjudications, which
are governed by the Administrative Procedures Act. Additionally, 29 U.S.C.
§ 160(b) (1988) provides that NLRB unfair labor practice actions "shall,
so far as practicable, be conducted in accordance with the rules of
evidence applicable in the district courts of the United States under the
rules of civil procedure applicable for the district courts of the United
States." As a result, the agency's opinion must contain "findings and
conclusions, and the reasons or basis therefore, on all the
-7-
material issues of fact, law, or discretion presented on the record." 5
U.S.C. § 557(c) (1994).
When a court reviews the NLRB's opinion, it must "hold unlawful and
set aside agency action, findings, and conclusions found to by . . .
unsupported by substantial evidence." 5 U.S.C. § 706(2)(E) (1994); see
also 29 U.S.C. § 160(e) (the court must determine whether the Board
correctly applied the law and whether its findings of fact are supported
by substantial evidence on the record considered as a whole); Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); NLRB v. American Linen
Supply Co., 945 F.2d 1428, 1431 (8th Cir. 1991). Substantial evidence is
more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Universal Camera, 340 U.S. at 477 (citation omitted).
III. DISCUSSION
The parties do not dispute that the strike began as an economic
strike; nor do the parties dispute the ALJ's findings that the Company
committed the ULP's alleged in the amended complaint in this case. The
first issue to be addressed, therefore, is whether the Board erred in
concluding that the ULP's committed by Company agents converted the Union's
economic strike into an unfair labor practice strike.
The commission of ULP's by an employer during a strike that began as
an economically motivated strike does not automatically convert that strike
into an unfair labor practice strike. Gaywood Mfg. Co., 299 NLRB 697, 700
(1990); C-Line Express, 292 NLRB 638, 638 (1989). Rather, the NLRB
"General Counsel must establish that the unlawful conduct was a factor (not
necessarily the sole or predominant one) that caused a prolongation of the
work stoppage." C-Line, 292 NLRB at 638; see also Gaywood, 299 NLRB at
700. In other words, there must be a causal connection shown between the
-8-
employer's unlawful conduct and a prolongation of the strike. See, e.g.,
Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1079-80 (1st Cir.
1981).
Both subjective and objective factors may be probative of conversion.
Id. at 1080. Applying a subjective analysis, the Board and reviewing court
may give substantial weight to the strikers' own characterization of their
motive for continuing to strike after the unfair labor practice. Applying
an objective analysis, the Board and reviewing court may consider the
probable impact of the ULP in question on reasonable strikers in the
relevant context. Id. Although the record will often permit an evaluation
of whether the strikers' knowledge of, and subjective reactions to, an
employer's unlawful conduct led to a prolongation of the work stoppage, the
presence or absence of evidence of such subjective motivations is not
always the sine qua non for determining whether a conversion has occurred.
C-Line, 292 NLRB at 638. Rather, certain types of unfair labor practices
by their very nature will have a reasonable tendency to prolong a strike.
Id.; see, e.g., Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 276 (8th Cir.
1983) (employer's withdrawal of union recognition clearly prolonged strike
because it put an end to contract negotiations).
In considering the strikers' subjective motivations in this case, the
ALJ determined that
the single most compelling aspect of the entire record is that
each of the former striking employees, who testified on behalf
of the General Counsel, stated that, notwithstanding the
aforementioned unfair labor practices committed while the
strike continued, the discussions at their union meetings, with
regard to continuing the strike, centered on the need for a
collective-bargaining agreement and on the desire to be treated
fairly in any agreement. Other than Theresa Otto, not one
witness mentioned the unfair labor practices as even being a
factor in the decisionmaking process . . . .
-9-
F.L. Thorpe, 315 NLRB No. 22, at 13. In reversing the ALJ, however, the
Board concluded that the record contains "ample evidence that the strikers'
subjective motivations for continuing the strike in fact did change as a
result of the unfair labor practices." Id. at 4. Significantly, in
reaching this conclusion, the Board inferred a change in the strikers'
subjective motivations based upon its conclusion that the ULP's "caused
consternation among the employees so as to prolong the strike." Id.
In Chicago Beef Co., 298 NLRB 1039 (1990), enforced, 944 F.2d 905
(6th Cir. 1991), the NLRB held that an economic strike had been converted
into an unfair labor practice strike as a result of the employer's unlawful
conduct; in support of its decision, the NLRB relied upon subjective
evidence (i.e. strikers' testimony) that the employer's unlawful conduct
"caused consternation among the striking employees." Id. at 1040. The
NLRB found further support for its subjective analysis in an analysis of
the objective evidence on the record. See id.
In this case, the Board states that "where, as here, the unfair labor
practices are of a type which the Board has found objectively tend to
prolong a strike, the Board has inferred a change in strikers' subjective
motivations where there is evidence that the unfair labor practices `caused
consternation among the striking employees.'" F.L. Thorpe, 315 NLRB No.
22, at 4 (emphasis added) (citing Chicago Beef, 298 NLRB at 1040). We hold
that the Board committed legal error in analyzing the strikers' subjective
motivations by ignoring entirely the strikers' testimony which clearly
establishes that the work stoppage in this case remained economically
motivated throughout the length of the strike, and instead using objective
criteria to infer conversion to a ULP strike under the "caused
consternation" test.
Furthermore, we find the Board's holding that the strike converted
to an unfair labor practice strike to be unsupported by
-10-
substantial evidence on the record. As the ALJ aptly noted, the most
compelling aspect of the record in this case is the testimony of striking
employees who indicated that, notwithstanding the ULP's committed by
Company agents, the discussions at union meetings centered upon the need
for a collective bargaining agreement and the desire to be treated fairly
in any agreement. For example, during Linda Smith's cross-examination
before the ALJ, Smith testified as follows:
Q: The reason that you were told at the union meeting
you were going out on strike in April [of 1991] was to get a
better contract, is that not correct?
. . . .
A: The union didn't tell us to do this. We voted it
in, all of us girls voted it in, it was our choice to do.
Q: And your vote was you want to go on strike to get a
better contract?
A: Yes, sir.
Q: And that's the reason you voted, is that correct?
A: Yes, sir.
. . . .
Q: And every time the subject came up [at union
meetings] the reason that you voted to continue the strike was
to get a better contract, is that not correct?
A: That's right.
Q: And that is the reason you are currently out on
strike, is that not correct?
A: Yes, it is.
. . . .
Q: Is that the stated reason you people are out on
strike, to get a better contract?
A: To get a contract with Thorpe, yes.
-11-
Q: And that's the only reason, is that not correct?
A: Yes, it is.
. . . .
JUDGE LITVACK: And the reason for the continuation, as
Mr. Berens asked you, the discussion for continuing the strike
centered on the fact that you people wanted to get a better
contract?
A: To get a contract, yes.
Trial Transcript at 95-97 ("Tr. at 95-97"). Cindy Kruse similarly
testified on cross-examination that the strikers' discussions about
continuing the strike always centered around obtaining a more favorable
contract. Tr. at 139-44. For example, Kruse testified as follows:
Q: Is the reason that you have been told by the Union
that you're striking is to get a better contract?
. . . .
A: It's what we want.
. . . .
Q: Now as to discussions beginning the strike, it was
all centered around getting a contract, wasn't it?
A: Yes.
. . . .
Q: Okay. Now have you had discussions since then about
continuing the strike?
A: Yes.
Q: And all of those discussions have always centered
around getting a contract, haven't they?
A: A contract, and for them to start negotiating.
Q: Yes. So the Company would negotiate better with you
and you would get a contract, is that right?
-12-
A: Hopefully.
. . . .
Q: That's the reason that's been discussed and why you
continue to strike?
A: Yes.
Q: And there's been no other reasons discussed as to
why you've gone on strike, has there?
A: No.
. . . .
JUDGE LITVACK: I take it since the strike began
employees at union meetings have discussed whether they ought
to continue the strike?
A: Yes.
JUDGE LITVACK: All right. The reasons that the
employees have discussed, do they all have to do with contract
reasons, getting better health, better safety conditions, have
they all centered on those type[s] of issues?
A: Yes.
JUDGE LITVACK: Have they involved anything else?
A: No.
Tr. at 140, 142-44. Employees Roxanne Boyer, Susan Cox, Deborah Young, and
Kathy Bergstrom also testified on cross-examination that the sole reason
discussed among strikers for continuing the strike was to obtain a better
contract. See Tr. at 172-73, 196-97, 211-14, 218-19, 281-84. Lastly, with
regard to the testimony of Theresa Otto concerning the strikers' subjective
motivations, Otto's testimony may be characterized as ambiguous, at best.
When asked by Judge Litvack whether Sandy Sanke's comments were ever
discussed among strikers as a reason for continuing the work stoppage, Otto
replied that Sanke's comments "made us angry and more determined to get a
fair contract." Tr. at 236-37. In an
-13-
effort to pin down Otto's testimony concerning the issue of conversion,
Judge Litvack initiated the following exchange:
JUDGE LITVAK: [I]t's alleged that this was no longer an
economic strike, a strike to get a contract, but it turned into
an unfair labor practice strike, protesting the activity of the
-- the Employer's activities during the strike. Now I'm asking
you, did you ever hear any of that expressed as a motivating
factor for continuing the strike? That now we're protesting
all the things that the company did during the strike.
A: Yeah.
JUDGE LITVACK: All right. Now tell me what you heard.
A: Basically --
JUDGE LITVACK: Not basically. I want to know comments
that you heard.
Tr. at 239. Otto's subsequent testimony, however, fails to establish that
the strikers' subjective motivations had changed; rather, Otto's testimony
appears to indicate that the strike continued to be motivated by the
strikers' desire to obtain a contract with fair terms and benefits. See
Tr. at 239-40. In short, Otto failed to substantiate her affirmative
response to the question posed by Judge Litvack.
Moreover, the strikers' testimony is corroborated by additional
evidence of subjective intent on the record. As noted, at all times the
picket signs solely addressed economic reasons for the strike; at no time
did the picket signs change in response to ULP's committed by Company
agents. This evidence further belies the Board's conclusion in this case.
Based upon our detailed review of the record in this case, we find
the Board's subjective analysis to be unsupported by substantial evidence
and otherwise contrary to law. We further
-14-
find that the record is capable of supporting only one conclusion with
regard to the strikers' subjective motivations; namely, that at no time
subsequent to the strike's inception did the strikers' subjective
motivations for continuing to strike change in response to ULP's committed
by Company agents.
With regard to an objective analysis, the ALJ noted that the NLRB has
held that an employer's "`unlawful conditioning of reinstatement on
resignation from the [u]nion is comparable in effect to conduct such as
unlawful withdrawal of recognition during an economic strike -- an unfair
labor practice that, by its nature, has a reasonable tendency to prolong
the strike.'" F.L. Thorpe, 315 NLRB No. 22, at 13 (citing Gaywood, 299
NLRB at 700). The ALJ, however, rejected the General Counsel's argument
that, in light of Gaywood,
notwithstanding the subjective evidence [on the record],
including the former striking employees' own belief that the
objective of the strike . . . , even in the face of unfair
labor practices, remained economic, the mere existence of
evidence, establishing the resignation from union membership
condition for returning to work, satisfies the General
Counsel's burden of proof that [Thorpe's] misconduct prolonged
the strike, thereby converting it to an unfair labor practice
strike.
F.L. Thorpe, 315 NLRB No. 22, at 14. In so doing, the ALJ noted that in
Gaywood the NLRB specifically relied upon crucial evidence of sufficient
dissemination of the employer's unlawful condition among the striking
employees. Indeed, the ALJ correctly observed that, notwithstanding the
broad language adopted in Gaywood, "the subjective fact of dissemination
remains necessary to establish that the effect of the [conditioning of
reinstatement on resignation from the union] was not isolated." Id. The
ALJ found that because the evidence showed that only two of the sixty-seven
striking employees (i.e. Smith and Kruse) were aware of the unlawful
conditioning of reinstatement on resignation from the
-15-
union, evidence of sufficient dissemination was lacking.2 The ALJ
therefore found that deference should be accorded the abundant testimony
offered by the strikers regarding the economic rationale for their strike.
Accordingly, the ALJ rejected the General Counsel's contention that the
mere fact that Thorpe unlawfully conditioned reinstatement upon resignation
from the Union is sufficient, in and of itself, to have converted the
employees' economic strike into an unfair labor practice strike.
The Board disagreed with the ALJ's finding that the Company's
unlawful conditioning of reinstatement was not sufficiently disseminated.
The Board relied in significant part upon the dissemination of Lamphere's
statement to Susan Cox. Notably, however, no evidence was introduced of
the time frame within which such dissemination occurred.
Upon review, we agree with the ALJ's decision which recognizes that
evidence of sufficient dissemination is necessary in order to establish
that the effect of the unlawful conditioning of reinstatement was not
isolated. Given that Lamphere's statement was made prior to the inception
of the strike, coupled with the fact that, as the General Counsel conceded,
the strike began as an economic strike, the record in this case fails to
establish sufficient dissemination of the unlawful conditioning of
reinstatement following the inception of the work stoppage. Rather, as the
ALJ found, the record clearly indicates only that two of the sixty-seven
strikers were aware of the unlawful
2
Judge Litvack noted that although Susan Cox received an
identical condition from Supervisor Lamphere, such occurred prior
to the start of the strike, and evidence that such was disseminated
was never placed in any particular time frame. In addition, the
General Counsel conceded that the strike was economically motivated
at the outset. Judge Litvack further noted that the record is
bereft of evidence that Tribble's threat to Smith and Kruse
regarding the setting back of employees' anniversary dates for each
week of the strike was ever disseminated to any other employee.
-16-
condition for returning. Accordingly, we find the Board's holding to the
contrary to be unsupported by substantial evidence on the record.
Finally, with regard to Sandy Sanke's comments to picketers during
June, July and August of 1991, the ALJ found that although the record
contained evidence of wide dissemination of these comments among the
striking employees, there was no record evidence that such had any impact
on the underlying rationale for the strike, which always remained focused
upon obtaining a more favorable collective-bargaining agreement. F.L.
Thorpe, 315 NLRB No. 22, at 14.
The Board, however, held that in light of Sandy Sanke's high position
in the Company's managerial hierarchy, her statements concerning
termination reasonably tended to prolong the strike and therefore afforded
a sufficient and independent basis for finding a conversion. Id. at 3.
We disagree. Although one might infer that comments such as those made by
someone of Sanke's stature within the Company might objectively tend to
prolong a strike, such comments do not provide an independent basis for
finding a conversion in this case in light of the overwhelming subjective
evidence to the contrary offered by the strikers themselves that is
corroborated by additional record evidence of subjective intent. In short,
the Board erred by substituting its own judgment concerning the alleged
conversion in place of ample credible record evidence provided and
corroborated by numerous strikers in testimony before the ALJ which belies
entirely any finding of such a conversion. Indeed, the strikers' testimony
is particularly compelling in this case because it clearly is not the
"self-serving rhetoric of sophisticated union officials and members
inconsistent with the true factual context." C-Line, 292 NLRB at 638
(citing Soule Glass, 652 F.2d at 1080). Accordingly, we find the Board's
determination that its objective analysis afforded a sufficient and
-17-
independent basis for finding a conversion to be unsupported by substantial
evidence on the record.
IV. CONCLUSION
For the foregoing reasons we hold that the Board's determination is
unsupported by substantial record evidence and, with regard to its
subjective analysis in this case, otherwise not in accordance with law.
We reverse the decision of the Board holding that the ULP's committed by
Company agents converted the Union's strike from an economic strike into
an unfair labor practice strike. Rather, as the ALJ originally found, we
find that the record fails to support a finding of conversion in this case.
Because we find that no conversion occurred, we need not address the issue
of reconversion. We enforce the Board's order in part and deny enforcement
in part, in accordance with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-18-
|
COURT OF APPEALS
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DARRYL HAMPTON,
Appellant,
v.
TEXAS DEPARTMENT OF
PROTECTIVE AND REGULATORY SERVICES,
Appellee.
'
'
'
'
'
'
No. 08-03-00474-CV
Appeal from the
65th District Court
of El Paso County, Texas
(TC# 2002CM779)
O P I N I O N
Darryl Hampton, father of the minor
child D.H., appeals the trial court=s judgment terminating his parental
rights, following a bench trial. In
three issues, he challenges the legal and factual sufficiency of the evidence
to support the termination. We affirm.
Facts
Darryl Hampton is the father, and Ryan
Davenport the mother, of D.H., a girl born in October 2000. In February 2002, the Texas Department of
Protective and Regulatory Services (the Department) removed D.H. from her
mother=s custody. Ryan Davenport has relinquished parental
rights to both children. The father of
D.H.=s half-sister has also had his parental rights
terminated. D.H. and her sister now live
with foster parents who wish to adopt them both. Darryl Hampton was in prison at the time D.H.
was removed from her mother=s home.
Standard
of review
A trial court may terminate parental
rights if it finds that (1) the parent has engaged in any of the conduct
enumerated in the Family Code as grounds for termination; and (2) termination
is in the best interest of the child. Tex. Fam. Code Ann. ' 161.001 (Vernon 2002); In re W.E.C., 110
S.W.3d 231, 236 (Tex. App.--Fort Worth 2003, no pet.). The State has the burden to prove these
elements by clear and convincing evidence.
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); Salas
v. Texas Department of Protective and Regulatory Services, 71 S.W.3d 783,
788 (Tex. App.--El Paso 2002, no pet.).
AClear and convincing@ means the measure or degree of proof
producing in the mind of the fact finder a firm belief or conviction as to the
truth of the allegation sought to be established. J.F.C., 96 S.W.3d at
264.
In reviewing a legal sufficiency
challenge, we consider all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was
true. Id. at
266. We must assume that the fact
finder resolved disputed facts in favor of its finding if a reasonable fact
finder could do so. Id. While we consider undisputed evidence
against the finding, we disregard all evidence that a reasonable fact finder
could have disbelieved or found to have been incredible. Id. The evidence is legally insufficient only
if no reasonable fact finder could form a firm belief or conviction that the
thing to be proven is true. Id.
In reviewing a factual sufficiency
challenge, we consider all the evidence, both for and against the finding, in a
neutral light. We determine whether a
fact finder could reasonably form a firm belief or conviction about the truth
of the Department=s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We do not substitute our judgment for that of
the fact finder, merely because we might reach a
different conclusion, nor do we assay the credibility of witnesses. See id. at 26
(admonishing that fact finders and appellate courts must maintain respective
constitutional roles).
Imprisonment
and inability to care for child
In his second issue on appeal,
Hampton contends that there was legally and factually insufficient evidence to
support the trial court=s finding that Hampton knowingly engaged in conduct that
resulted in his conviction of an offense and confinement or imprisonment and
inability to care for the child for not less than two years from the date the
petition for termination was filed, a ground for termination under Tex. Fam. Code Ann. ' 161.001(1)(Q)
(Vernon 2002). Hampton acknowledges that
the first prong of this ground is met, as evidence showed that he was
incarcerated at the time the Department=s original petition was filed on
February 8, 2002, and his projected release date was April 2004.[1] He disputes only that the Department proved
by clear and convincing evidence his inability to care for the child during his
incarceration.
It is true, as Hampton asserts, that incarceration alone cannot support a
termination of parental rights. Tex. Dept. of Human Services v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987); In re Caballero, 53 S.W.3d 391, 395 (Tex. App.--Amarillo
2001, pet. denied). By including
the element that the incarcerated parent have the Ainability to care for the child,@ the legislature clearly recognized
this. See Caballero, 53 S.W.3d at 396. The
Amarillo Court of Appeals, in analyzing the burden of proof presented by this
subsection, found that once the Department has established the incarceration
element, the burden shifts to the parent to produce some evidence of how he or
she will arrange care during that period.
When that burden of production is met, the Department is then required
to persuade the court that the stated arrangements would not satisfy the parent=s burden to the child. Caballero, 53 S.W.3d at
396. We agree that this is a
reasoned approach, and we adopt it here.
Thus, it fell to Hampton to produce
evidence of his arrangements for care of D.H. during his imprisonment. He points to the following as having met his
burden. He wrote to the court and
suggested his mother and sister as potential placements for the care of his
daughter. He wrote nine letters to the
Department regarding his daughter. When
his mother and sister were determined to be unsuitable placements, Hampton
provided (during trial) the names of other potential relative placements for
D.H. He supported his daughter by
signing over his IRS refund and six paychecks to D.H.=s mother, a total of approximately
$2,000. Finally, he submitted a written
permanency plan for D.H. to the Department, although the content of this plan
is not part of the appellate record.
The Department responds that its
application under the Interstate Compact for the Placement of Children to North
Carolina, where Hampton=s mother and sister live, was denied. The Department=s North Carolina counterpart rejected
these relatives as potential caregivers because Hampton=s mother Awas well known by [the North
Carolina] agency, that she had had some children placed with her who were
subsequently removed from her care,@ and his sister had a pending
criminal charge for assault. The
Department further points out that Hampton did not present any testimony or
other evidence from anyone--his mother, sister, or the other two relatives he
named during trial--showing a willingness or ability to care for D.H for the
remainder of Hampton=s imprisonment. The
Department contends that this mere naming of relatives, without some showing of
willingness, capacity, and competence, is not sufficient to meet Hampton=s burden of production on this
issue. The Department also maintains
that neither writing letters to the department nor signing over his IRS refund
check and final paychecks are any evidence of ability to care for D.H.[2] Finally, the Department urges that no
conclusions can be drawn from the permanency plan apparently filed by Hampton,
as the plan is not in this record and thus cannot be evidence of arrangements
to care for D.H.
Viewing this evidence in the light
most favorable to the judgment of termination, we find the fact finder could
reasonably form a firm belief that Hampton was unable to care for D.H. during
the period of his incarceration. There
is legally sufficient evidence to support the finding. Moreover, viewing the entire record in a
neutral light, we find that the disputed evidence which could not have been
credited by the fact finder is not so significant that the court could not
reasonably form a firm belief. Thus,
there is likewise factually sufficient evidence supporting the trial court=s finding that Hampton had knowingly
engaged in criminal conduct resulting in his incarceration and inability to
care for D.H. during two years following the filing of the Department=s petition. Hampton=s second issue on appeal is
overruled.
Best
interest of the child
In his third issue, Hampton argues
that the evidence was legally and factually insufficient to support the finding
that termination of his parental rights was in D.H.=s best interest.
Although the trial court starts from
a strong presumption that a child=s best interests are served by
keeping the child with her natural parents, that presumption disappears when
confronted by evidence to the contrary. In re A.I.G., 2003 WL 1611426, at *4 (Tex. App.--San Antonio
March 31, 2003, no pet.). In
determining a child=s best interest, the trial court may consider many factors,
including but not limited to (1) the child=s desires; (2) the emotional and
physical needs 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 plans for the child by these
individuals; (6) the stability of the home; (7) the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a
proper one; and (8) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976).
While incarceration alone is not sufficient to show that termination is
in the child=s best interests, it can be part of a
course of conduct demonstrating that termination is in the child=s best interests. See In re J.N.R., 982 S.W.2d 137,
142-43 (Tex. App.--Houston [1st Dist.] 1998, no pet.), disapproved on other
grounds, In re J.F.C., 96 S.W.3d 256 (Tex. 2002).
The evidence supporting the trial
court=s conclusion that termination was in
D.H.=s best interest includes the following. Hampton left his first two children with
their mother in North Carolina in 1995 and has not visited them again. Hampton had a long history of entanglements
with the law, including assaultive conduct,
culminating in his three-year sentence for burglary. Before his arrest in 2001, Hampton reported
he drank five to eight alcoholic beverages Aon a day off.@
Hampton has not provided financial support for D.H. since July 2001,
other than three paychecks from Luby=s signed over to Davenport. D.H. had not seen her father regularly since
she was nine months old. D.H. and her
half-sister are very close, have lived together since the sister=s birth, and love each other. Separating them would be detrimental to
both. Their foster parents wish to adopt
both girls. The emotional, physical, and
financial needs of D.H. are being met by her foster parents.
In arguing that the evidence does not
support the best interest finding, Hampton points to the following. Hampton wrote to the court immediately upon
learning that D.H. had been removed from her mother=s care, asking that she be returned
to her mother or alternatively be placed with his relatives if Davenport was
not competent to care for D.H. He wrote
numerous letters to the Department regarding his daughter. After his incarceration, he signed over an
IRS check and three paychecks for D.H.=s support. Later, he signed over three additional
paychecks. He submitted a plan for D.H.=s care, as required by the Department. He also points out that he has taken classes
while in jail, that he would take parenting classes if they were available, and
that he asked the Department to arrange visitation with D.H.
Clearly, a reasonable fact finder
could reach a firm belief or conviction that termination of Hampton=s parental rights are in D.H.=s best interest, viewing the evidence
in the light most favorable to termination.
Viewing the evidence in a neutral light, we also conclude that there was
sufficient evidence to support the trial court=s conclusion that termination of
Darryl Hampton=s parental rights was in D.H.=s best interest, and disputed evidence is not so strong as to
cast doubt on the trial court=s conclusions. Hampton=s third issue on appeal is overruled.
Conclusion
We may affirm the trial court=s judgment upon finding any of the
alleged grounds for termination is a proper one, together with a proper finding
that termination is in the best interest of the child. Caballero, 53 S.W.3d
at 395. Thus, we need not reach
Hampton=s first issue on appeal. The trial court=s judgment terminating Darryl Hampton=s parental rights to the child D.H.
is affirmed.
SUSAN
LARSEN, Justice
June 10, 2004
Before Panel No. 1
Larsen, McClure, and Chew,
JJ.
[1]On
January 28, 2001, Hampton was arrested for burglary of a habitation. He was placed on deferred adjudication
probation on May 22, 2001. He remained
on probation until July 3, 2001, when he was arrested again for burglary. His probation was revoked and he received a
three-year sentence on his initial burglary charge. He began serving the three-year sentence on
September 27, 2001.
[2]Under
the circumstances here, where the child=s
mother is not caring for her and has relinquished her parental rights, we agree
that a fact finder could reasonably give this evidence little weight. Where a responsible mother or other caretaker
was receiving the funds and caring for the child, however, we might view it
very differently.
|
124 S.E.2d 252 (1962)
STATE of West Virginia
v.
George VANCE.
No. 12123.
Supreme Court of Appeals of West Virginia.
Submitted January 23, 1962.
Decided February 13, 1962.
Dissenting Opinion March 6, 1962.
*254 Glyn Dial Ellis, Logan, for plaintiff in error.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.
*253 HAYMOND, Judge.
In the trial of an indictment against the defendant, George Vance, for the crime of statutory rape, the jury returned a verdict of guilty as charged and, the State having waived the death penalty, the Circuit Court of Logan County by final judgment entered February 8, 1961, sentenced the defendant to imprisonment for life in the penitentiary of this State. To that judgment this Court granted this writ of error upon the application of the defendant.
The defendant, whose exact age is not established by the evidence but who is shown to be well above the age of sixteen years, had been married to the mother of the prosecutrix, Billy Lou Vance, a ten year old female child, for a period of approximately nine years before the date of the alleged offense which occurred in Logan County during the forenoon of Saturday, September 10, 1960. The prosecutrix lived with the defendant and his wife at or near a place known as Mountain Lake Park, which appears to be a part or a suburb of the city of Logan, in Logan County.
During the early forenoon of Saturday, September 10, 1960, the defendant, who had been drinking wine and who took a bottle of it with him, left his home, accompanied by the prosecutrix, an eleven year old neighborhood girl named Kay, and a young boy named Paul who apparently also lived in the same neighborhood, and proceeded in an automobile driven by the defendant to a stream near Stollings, in Logan County, to hunt for fishing worms and to fish in that stream. After they arrived near the stream the defendant told the prosecutrix and the boy to leave him and Kay and to search for worms. While the defendant and Kay remained together and after the prosecutrix and the boy had gone some distance from the defendant the prosecutrix noticed that he felt the chest of the other girl. Shortly afterwards, the group having again come together, the defendant took the prosecutrix into some weeds or bushes near the bank of the stream, caused her to lie down and raised her dress. She pulled down her underclothing and he opened his trousers and lay on top of her.
The prosecutrix testified that her legs were spread apart; that the defendant placed his male organ between her legs and that its contact with her caused her pain in her female genital organ. While he and the prosecutrix were lying on the ground and he was moving up and down on top of her three men on the opposite side of the stream who had noticed the defendant and the children and whose suspicions had been aroused by his conduct, crossed the stream, came within a few feet of the defendant and saw him while he was on top of the prosecutrix. They testified in effect that the girl's legs were spread *255 apart; that the defendant's male organ was exposed and rigid; and that they heard the girl cry out that his acts while lying on her hurt her. When the defendant became aware of their presence a few feet from him he jumped to his feet and the prosecutrix ran from the scene. The three men followed the defendant to his automobile which was parked nearby. Two of the men remained to watch the defendant and the third man went to notify the police. The defendant entered the automobile, drove it from the scene and proceeded to his home where he arrived shortly after noon. His wife, who testified as witness in behalf of the State, stated that upon his arrival at his home he was pale and noticeably nervous. After the defendant had left the scene the prosecutrix again saw Kay and the two girls walked together toward their home, at which time, according to Kay, the prosecutrix was crying. On the way they were met by the wife of the defendant, who had sent her to get the girls, and they were taken by her in an automobile to the home of the defendant.
After the police were notified two state troopers went to the home of the defendant, informed him of the charge against him, and placed him under arrest. They also took the prosecutrix and the defendant to police headquarters and obtained a written statement from each of them. The prosecutrix and the defendant were also taken to the Guyan Valley Hospital in Logan and each was examined by a physician at that place.
When the defendant was first questioned at police headquarters he denied the charge but later in the afternoon he made a written statement which he insisted he did not do until he had been struck by one of the officers. In that statement he said that he made it of his own free will without any threat or promise, that "Me and the kids were out to Stollings, we were fishing and we went to get some worms, me and Billy Lou. Billy Lou went with me to get them. We went over in the bushes and I told her to sit down and then I told her to lay down. I told her to pull up her dress and pull down her pants part way down. Then I took out my peter and put it between her legs and started going up and down, and then the men came from above us and one of them had a rock and said that * * * I should be killed for doing a thing like that. They went back to the car and he told the other two men to watch me, and then I jumped in the car and drove around to look for the girls, then I went home and then I sent my wife and brother's boy after the girls." After the trooper who took the statement testified that the defendant had not been struck or threatened or induced by any promise to make the statement, it was introduced in evidence.
The prosecutrix testified that after she and the defendant went into the bushes he made her lie down, "made me take my pants down and then he pulled out his privates."; that he opened his pants and "Then he stuck his privates close to my privates and started going up and down" between her legs; that while he was on her she felt pain in her privates; and that she said "Oh, that hurts." just before the three men came to them. She also testified that on other prior occasions he had "bothered" her in the same manner but that she had never before engaged in such conduct with any other person.
The doctor who examined the prosecutrix at the Guyan Valley Hospital during the early afternoon of the same day stated that he specifically examined her genitals; that he found no bruises, no bleeding and no laceration; that the hymen was intact; that he obtained a vaginal smear with an applicator inserted through the opening of the hymen into the cavity of the vagina and that the smear showed prostatic secretion. He also testified that for such secretion to get inside the hymen it would be necessary for the male organ to come in contact with the sex organ of the female; and that the external lips would have to be parted and there would have to be contact. In answer to the question: "Doctor, having in mind the fact that you found *256 prostatic secretion inside of the vagina, what would be your opinion, if you have any, upon the question of whether or not the male organ penetrated between the outer lips of the labia of this young girl?", he said: "In my opinion it has."
Though in his testimony the defendant denied that he had penetrated the female organ of the prosecutrix, he made this admission: "Well, I had my thing between her legs, I asked her to pull her dress up and instead of pulling her dress up she pulled her pants down and I put my thing between her legs." He insisted that he was very drunk and that he did not know "exactly" what he was doing. Though it appears that he had drunk a considerable quantity of wine, persons who saw him before and after he took the prosecutrix into the bushes testified that he was sober or was not intoxicated when they saw him on the day of the alleged crime. Among the witnesses so testifying were his wife, the prosecutrix, the other young girl who was with the prosecutrix and the defendant, the three men who came upon him near the bank of the stream, and the two officers who found him at his home where he was arrested and who interrogated him at police headquarters.
In seeking reversal of the final judgment of the circuit court the defendant assigns many errors. Of the numerous assignments of error only four merit consideration. Those assignments are: (1) That the evidence fails to show that the defendant penetrated the female organ of the prosecutrix; (2) that the statement of the defendant was not voluntarily given and for that reason should not have been admitted in evidence; (3) that defendant's Instruction No. 1, which would have directed the jury to return a verdict of not guilty if the jury believed that the defendant was deprived of his reason and willpower because of intoxication and that the act of rape had not been completely performed, and defendant's Instruction No. 10, which would have told the jury that it should find the defendant not guilty if it believed that he had, though voluntarily, become intoxicated to such an extent and for such a period of time as to cause him to be unconscious of his acts and to be afflicted with illusions and hallucinations and in consequence was not responsible for the acts committed by him with the prosecutrix while in that kind of mental condition, should have been given, and that the refusal of the circuit court to give either instruction constituted reversible error; and (4) that the absence of the defendant during a short period while the instructions were being discussed and considered by the circuit court also constituted reversible error.
The contention of the defendant that the evidence is not sufficient to support the finding of the jury that the defendant penetrated the female genital organ of the prosecutrix and its verdict of guilty of the crime of statutory rape is completely devoid of merit. The defendant admitted that he placed his male organ between the prosecutrix's legs and, though he denied that he raped the prosecutrix, he did not state in his testimony that his act did not amount to penetration of her female genital organ. The testimony of the prosecutrix that the act of the defendant caused her pain and her spontaneous statement at the time that the defendant hurt her which was overheard by the men who saw the defendant while he was on top of the prosecutrix and the testimony of the doctor who examined the prosecutrix during the early afternoon of the same day constitute sufficient proof that the defendant succeeded in penetrating some part of the female genital organ of the prosecutrix and that his action in that respect constituted the offense of rape. To constitute the crime of rape, there must be some degree of penetration of the female genital organ by the male genital organ, but any penetration, however slight, of the labia or external lips of the vulva of the female is all that is necessary. The hymen need not be ruptured to sustain a conviction for rape. State v. Higginbotham, W. *257 Va., 122 S.E.2d 429; State v. Brady, 104 W.Va. 523, 140 S.E. 546.
From the evidence the jury had the right to believe beyond a reasonable doubt, as the verdict indicates it did believe, that the defendant was guilty of the offense of statutory rape charged against him in the indictment. The evidence fully justifies his conviction of that offense and the finding of the jury by its verdict that the defendant was guilty as charged will not be disturbed by this Court. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the accused beyond a reasonable doubt, though the evidence adduced by the accused is in conflict therewith. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Point 2, syllabus, State v. Milam, 142 W.Va. 98, 94 S.E.2d 442; point 1, syllabus, State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156; point 3, syllabus, State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513; point 1, syllabus, State v. Reppert, 132 W.Va. 675, 52 S.E.2d 820; point 2, syllabus, State v. Hacker, 130 W. Va. 91, 42 S.E.2d 559; point 1, syllabus, State v. Bowles, 117 W.Va. 217, 185 S.E. 205. See also State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526, 93 S.E.2d 535; State v. Curotz, 142 W.Va. 45, 93 S.E.2d 519; Id., 142 W.Va. 56, 93 S.E.2d 535; State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502; Id., 142 W.Va. 56, 93 S.E.2d 535; State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549; State v. Holmes, 125 W.Va. 97, 23 S.E.2d 61; State v. Gunter, 123 W.Va. 569, 17 S.E.2d 46; State v. Barkoski, 96 W.Va. 265, 122 S.E. 654; State v. Price, 94 W.Va. 644, 119 S.E. 874; State v. McLaughlin, 91 W.Va. 654, 114 S.E. 278; State v. Cook, 81 W.Va. 686, 95 S.E. 792; State v. Stewart, 63 W. Va. 597, 60 S.E. 591; State v. Henry, 51 W.Va. 283, 41 S.E. 439. A new trial will not be granted in a criminal case on the ground of insufficiency of the evidence, when the verdict against the defendant is based on conflicting oral testimony and the credibility of witnesses is involved, State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156; State v. Stowers, 66 W.Va. 198, 66 S.E. 323; or when the verdict is supported by substantial evidence. State v. Spradley, 140 W.Va. 314, 84 S.E.2d 156; State v. Livingston, 110 W.Va. 21, 156 S.E. 842.
The written signed statement of the defendant made by him to a police officer at police headquarters during the late afternoon of the day he was arrested was properly admitted by the circuit court. Though the defendant testified that he did not make and sign the statement until he was struck and knocked to the floor by one of the officers that assertion of the defendant is completely refuted by the testimony of the two officers who held him in custody and who questioned him about the offense with which he was charged. The circuit court found from the evidence that the statement had been freely and voluntarily made by the defendant, and this finding was also confirmed by the verdict of the jury. "It devolves upon the trial court in the first instance, before admitting it, to determine from evidence whether a confession of guilt has been freely and voluntarily made, and not under duress or threats or by some inducement made or held out to the accused by someone in authority, of benefit or reward of a worldly or temporal character, or in mitigation of punishment; and the burden is upon the State to show to the satisfaction of the court facts justifying the admission of such confession." Point 6, syllabus, State v. Bruner, 143 W.Va. 755, 105 S.E.2d 140; point 3, syllabus, State v. Brady, 104 W.Va. 523, 140 S.E. 546. See also State v. Mayle, 108 W.Va. 681, 152 S.E. 633; State v. Richards, 101 W.Va. 136, 132 S.E. 375; State v. Zaccario, 100 W.Va. 36, 129 S.E. 763; State v. Goldizen, 93 W.Va. 328, 116 S.E. 687. The evidence was sufficient to show to the satisfaction of the court that the written statement of the defendant was freely and *258 voluntarily made by him and that its action in admitting the statement was completely justified by the established facts. A confession of an accused is admissible in evidence when it appears that it was made to an officer without any inducement of a worldly or temporal character in the nature of a threat, promise or benefit held out to him by someone in authority with respect to his escape from or mitigation of his punishment. State v. Goldizen, 93 W.Va. 328, 116 S.E. 687. This Court has also said that the trial court has a wide discretion as to the admission of confessions and that ordinarily this discretion will not be disturbed on review. State v. Mayle, 108 W.Va. 681, 152 S.E. 633; State v. Brady, 104 W.Va. 523, 140 S.E. 546
Instruction No. 1 and Instruction No. 10, offered by the defendant and refused by the trial court, were properly refused. Both instructions misstate the law and neither instruction is supported by the evidence. The only evidence that the defendant was intoxicated at the time of the alleged offense was his testimony that he was so drunk that he did not know "exactly" what he was doing. His testimony on that point is completely refuted by his testimony which shows that he knew and remembered all or most of the other facts and circumstances which occurred in connection with the alleged offense and by the testimony of the numerous witnesses who saw the defendant either before or shortly after the occurrence of the alleged offense that the defendant was sober or was not intoxicated at the time that each of the witnesses observed him. The mere statement of the defendant that he was so drunk that he did not know "exactly" what he was doing is not sufficient to support either of the instructions which the trial court refused to give. An instruction which incorrectly states the law should be refused. Overton v. Fields, W.Va., 117 S.E.2d 598; Thurston v. Keathley, 143 W.Va. 795, 105 S.E.2d 181; Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672; Matthews v. Cumberland and Allegheny Gas Company, 138 W. Va. 639, 77 S.E.2d 180; Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164; Thrasher v. Amere Gas Utilities Company, 138 W.Va. 166, 75 S.E.2d 376; Moore v. Turner, 137 W.Va. 299, 71 S.E.2d 342, 32 A.L.R.2d 713; Thomason and Beggs v. Mosrie, 134 W.Va. 634, 60 S.E.2d 699; Gilkerson v. Baltimore and Ohio Railroad Company, 129 W.Va. 649, 41 S.E.2d 188; Parrish v. City of Huntington, 57 W.Va. 286, 50 S.E. 416. An instruction which is not sustained by the evidence should be refused. State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178, 107 S.E.2d 503; State v. Morris, 142 W.Va. 303, 95 S.E.2d 401; Mulroy v. Co-Operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63; State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526, 93 S.E.2d 535; Rees Electric Company, Inc. v. Mullens Smokeless Coal Company, 141 W.Va. 244, 89 S.E.2d 619; Ward v. Smith, 140 W.Va. 791, 86 S.E.2d 539; Hartley v. Crede, 140 W.Va. 133, 82 S.E. 2d 672; Thrasher v. Amere Gas Utilities Company, 138 W.Va. 166, 75 S.E.2d 376; Thomason and Beggs v. Mosrie, 134 W.Va. 634, 60 S.E.2d 699; Chesapeake and Ohio Railway Company v. Johnson, 134 W.Va. 619, 60 S.E.2d 203; Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9; State v. Humphreys, 128 W.Va. 370, 36 S.E.2d 469; Neal v. City of Bluefield, 105 W.Va. 201, 141 S.E. 779; Morgan Lumber and Manufacturing Company v. Surber, 104 W.Va. 308, 140 S.E. 12; Roberts v. Lykins, 102 W.Va. 409, 135 S.E. 388; Wilson v. McCoy, 93 W.Va. 667, 117 S.E. 473; Williams v. County Court of Lincoln County, 90 W. Va. 67, 110 S.E. 486; Penix v. Grafton, 86 W.Va. 278, 103 S.E. 106; Bond v. National Fire Insurance Company, 77 W.Va. 736, 88 S.E. 389.
Section 2, Article 3, Chapter 62, Code, 1931, provides in part that "A person indicted for felony shall be personally present during the trial therefor." This provision was incorporated in the Virginia Codes of 1849 and 1860 and has remained intact in the Codes of this State since the Code of 1868. In many decisions of this *259 Court beginning with Younger v. The State, 2 W.Va. 579, 98 Am.Dec. 791, decided in 1868, and including Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234, decided in 1950, this Court has held that this requirement of the statute means that such person must be present in person when any step affecting him is taken from arraignment to final judgment inclusive. Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234; State v. Martin, 120 W. Va. 229, 197 S.E. 727; State v. Howerton, 100 W.Va. 501, 130 S.E. 655; State v. McCausland, 82 W.Va. 525, 96 S.E. 938; State v. Snider, 81 W.Va. 522, 94 S.E. 981; State v. Grove, 74 W.Va. 702, 82 S.E. 1019; State v. Sutter, 71 W.Va. 371, 76 S.E. 811, 43 L.R.A.,N.S., 399; Barker v. Stephenson, 67 W.Va. 490, 68 S.E. 113; State v. Stevenson, 64 W.Va. 392, 62 S.E. 688, 19 L.R.A., N.S., 713; State v. Detwiler, 60 W.Va. 583, 55 S.E. 654; State v. Sheppard, 49 W.Va. 582, 39 S.E. 676; State v. Parsons, 39 W. Va. 464, 19 S.E. 876; State v. Greer, 22 W.Va. 800; State v. Sutfin, 22 W.Va. 771; The State v. Conkle, 16 W.Va. 736. Several of these cases, holding that in a felony case the defendant must be personally present when anything is done affecting him, say that the defendant must be personally present from the inception of the trial until the final judgment and that the record must show his presence. This Court has said that this provision of the statute has always been viewed as mandatory, that it will be strictly applied and enforced, and that the right which it safeguards to the accused of being personally present at all times during this trial has been deemed to be an inalienable right. State v. Howerton, 100 W.Va. 501, 130 S.E. 655; State v. Grove, 74 W.Va. 702, 82 S.E. 1019. In the Howerton case, in which the accused was indicted and tried for murder, the judgment of confinement in the penitentiary was held to be erroneous and was reversed on the sole ground that instructions offered by the State and the defendant were argued to and acted upon by the trial court in the absence of the defendant. In the opinion in that case this Court said: "There is certainly as great reason for the defendant being present at the argument and decision upon the instructions as when objection to evidence or motion for a new trial is argued and decided. The instructions, which give complexion to the evidence, are presumed to cover the case in its entirety. The presence of the accused may serve not only as a tempering influence upon the court, but in some cases he might, if present, stimulate and aid counsel representing his interests."
In the Howerton case this Court, quoting from its opinion in State v. Grove, 74 W. Va. 702, 82 S.E. 1019, used this language: "The statute stands as it has stood in the Virginias for years: `A person indicted for felony shall be personally present during the trial therefor'. Code 1913, Chapter 159, Section 2. The right of one under indictment for a felony to be personally present at every stage of his trial cannot be denied him. The statute has always been viewed as absolutely mandatory, even when it could be seen that no harm has come from its nonobservance. Notwithstanding such strict view of the right given, no legislature has seen fit to liberalize the rule. Quite apparently our lawmakers continue to sanction the policy of the original enactment as strictly interpreted and enforced by the courts. Such strict interpretation and enforcement in some instances seems unnecessarily technical. Particularly is this so when in a case it appears affirmatively that the accused could not have been prejudiced by a slight disregard of the statute. But the right of the accused in a felony case to be personally present at all times during his trial has ever been deemed rather an inalienable one. The province for change properly lies in the Legislature, not in this Court." In the syllabus in State v. Martin, 120 W.Va. 229, 197 S.E. 727, in strictly applying the mandatory provision of Section 2, Article 3, Chapter 62, Code, 1931, that "A person indicted for felony shall be personally present during the trial therefor.", this Court held that "In a felony case the accused must be present in person from the *260 inception of the trial on the indictment to the final judgment, when anything is done affecting him; and the record must show his presence."
It is true that this Court in four cases has refused to reverse the conviction and sentence in a felony case when certain proceedings in connection with the trial of the accused occurred during his absence. State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398; State v. Roberts, 122 W.Va. 536, 11 S.E.2d 172; State v. McHaffa, 110 W.Va. 266, 157 S.E. 595; State v. Lucas, 103 W.Va. 743, 138 S.E. 393. In each of those cases, however, this Court, in effect, considered that the acts in question had not occurred during the trial of the accused and were not within the provision of the statute which mandatorily requires the presence of the accused in the trial of a felony from its inception until the final judgment, although in the opinions in the Roberts and McHaffa cases and in point 2 of the syllabus in the Lucas case there are statements that the occurrence of such acts resulted in no prejudice to the defendant.
From the long line of decisions in which the absence of the defendant has been held to be reversible error the controlling characteristic which differentiates the activities that occur in connection with the trial of a person indicted for a felony appears to be whether they occurred during the trial and affected his interest and in consequence are within the scope of the statute and not whether such activities prejudiced any right of the defendant. The record in this case indicates that after the judge, the prosecuting attorney, the defendant and his attorney had gone to the judge's chambers and while the instructions submitted in behalf of the State and in behalf of the defendant were being discussed and considered by the attorneys and the judge, the absence of the defendant was discovered; that the proceedings were then suspended until the defendant was sent for and had returned to the room; that the defendant was not observed by anyone when he voluntarily left the room; that he was absent for about four or five minutes; and that he then returned and the discussion of the instructions was resumed in his presence
It is clear that the voluntary absence of the defendant for a period of four or five minutes occurred during the trial and that the action taken concerning the instructions was the type of action which related to and necessarily affected his interest. His absence is clearly within the scope of the statute, although it and the action of the court did not prejudice any of his rights. The discussion of the instructions during his absence and before it was discovered, however, constituted a clear, though technical, violation of the mandatory requirement of the statute that a person indicted for a felony must be personally present during the trial upon such indictment. The only difference between the occurrences in the Howerton case and those in this case is one of degree. In principle the occurrences in both cases are the same. In the Howerton case the defendant was apparently absent during the entire time that the instructions were considered and acted upon. In this case the defendant was present when the consideration of the instructions began and was voluntarily absent for a few minutes while the instructions were being discussed and considered, but after his absence was discovered and he had returned to the room he continued to be present until the discussion of the instructions was concluded and the instructions were acted upon by the judge.
The decision in the Howerton case applies to and controls the decision as to the absence of the defendant during a part of his trial in this case and requires the reversal of the judgment of life imprisonment rendered by the circuit court. In reluctantly reversing that judgment this Court adheres to and follows its many prior decisions which require strict compliance with the mandatory provision of the statute. If such requirement results in the reversal of *261 judgments of conviction in felony cases on purely technical grounds, as it has in this case, the desired relief must come from the Legislature and not from the courts. Until the Legislature acts to amend and liberalize the statutory requirement to prevent reversal of such judgments by reason of slight or technical noncompliance with the present statute, it must be presumed that the present strict enforcement of the mandatory provision of the present statute complies with and gives effect to the legislative intent at the time of the enactment of the statute.
Solely because of the error which resulted from the absence of the defendant during the discussion of the instructions, the judgment is reversed, the verdict of the jury is set aside, and this case is remanded to the circuit court for a new trial which is here awarded the defendant.
Judgment reversed, verdict set aside, new trial awarded.
CALHOUN, President (dissenting in part).
I respectfully dissent from that part of the decision and opinion which is summarized in the eighth point of the syllabus.
In all deference I suggest that the majority opinion may have killed in its infancy a wholesome trend toward an amelioration of the harsh rule announced and perpetuated by earlier decisions. In the case of State v. McHaffa, 110 W.Va. 266, pt. 2 syl., 157 S.E. 595, the Court stated: "In the trial of an accused for murder, it is not reversible error for the court to discuss with counsel, in the absence of the accused an instruction, afterwards given, requiring the jury to acquit him of murder in the first degree." (Italics supplied.) In the body of the opinion the Court stated: "The discussion of the instruction excluding first degree murder from the jury's consideration, afterwards granted, did not, in our opinion, prejudice the defendant. This Court is not inclined to extend the doctrine of the Howerton Case." (Italics supplied.) The McHaffa case manifestly is authority for the salutory and more reasonable rule that even though error of this nature occurs, it will not be regarded as reversible in the absence of a showing of prejudice. If plain language is to be given meaning and significance, the Court applied in that case the rule relating to harmless error. In the second point of the syllabus of State v. Lucas, 103 W.Va. 743, 138 S.E. 393, the Court stated: "The mere calling of the names of the twelve jurors by the clerk after the challenges have been completed and before the jury are sworn to try the issue joined in a felony case, in the absence of the accused, is not prejudicial error." (Italics supplied.)
Sometimes the rule here under consideration is applied with greater strictness in trials for capital offenses, and hence it may be pertinent to observe that each of the two cases cited above involved an indictment for murder. I have been unable to find a case prior to this in which the decisions in those cases have been criticized or overruled. The result is, in my judgment, that contemporaneously with the orbital flight of Astronaut John H. Glenn, Jr., we are needlessly taking a backward step in order to be consistent with a rule which lost its basis in actualities centuries ago. The majority opinion forsakes the rule of reason announced by the two cases cited above, and declines to apply principles relating to waiver of rights and principles relating to harmless error in a manner and to a degree glaringly out of harmony with the application of such principles in this day in both civil and criminal cases.
In the case of State v. Martin, 120 W. Va. 229, 231, 197 S.E. 727, 728, the Court stated: "The purpose of the statute is to preserve inviolate for an accused person his right and privilege of seeing and hearing what transpires at his trial, * * *." (Italics supplied.) Here the accused was not denied any right or privilege. At all times he was afforded the right and privilege of being present and, except for the very brief *262 period, he was actually present. If "the right and privilege" of being present at his trial had been denied to him, I would be in the forefront of those rallying to his side. On the contrary, the accused himself voluntarily absented himself for a very brief period of time, without asking permission, without the knowledge of the distinguished trial judge, and without the knowledge or consent of any other person in authority. While it appears that instructions were being "considered" meantime, it does not appear that a single instruction was granted or refused during that brief interim. In my judgment, this may be the first case in which this Court has reversed a conviction in the absence of an affirmative showing of the actual occurrence, during the absence of the accused, of something regarded as a part of his trial. Heretofore, in order to warrant a reversal, it must have appeared that the defendant was absent when something was "done affecting him." Dye v. Skeen, 135 W.Va. 90, 99, 62 S.E.2d 681, 687, 24 A.L.R.2d 1234. In numerous cases it has been held, as pointed out in the majority decision, that absence of the accused during the occurrence of something not actually a part of his trial will not warrant a reversal.
The right and privilege on which the accused relies is not constitutional, but merely statutory, though perhaps declaratory of the common law. An accused has a right to a jury trial but he may waive that right and enter a plea of guilty. He has the right to be tried in the county in which the offense occurred, but he may waive that right and move for a change of venue. He may waive his right to counsel. He may waive his right not to become a witness at his own trial. In numerous other situations an accused person may waive most sacred rights vouchsafed to him not merely by statute, but by constitutional provision also. See In re Speiser's Petition, 150 Cal.App.2d 561, 310 P.2d 454, 459-460, 68 A.L.R.2d 628.
I am not suggesting that this Court should hold that an accused person has a right to waive his privilege of being present throughout his entire trial; but I do insist that we should not disavow or refuse to apply in this situation principles relating to waiver, harmless error and invited error which are so generally applied in other areas. The defendant at all times had the right and privilege of being present at his trial and that right was not denied, curtailed, or abridged in the slightest degree at any time. He is merely seeking to take advantage of his own wrong; to take advantage of an alleged error which he invited or caused; and, by a reliance on his own act, to render abortive and a nullity a trial which this Court finds otherwise to have been free of prejudicial error.
Apparently, West Virginia, Virginia and Texas have in some respects at least applied with greater strictness the rule here being considered. Anno. 69 A.L.R.2d 844. I believe that in Virginia the rule has recently been applied with less strictness. In the case of Williams v. Commonwealth, 188 Va. 583, 593, 50 S.E.2d 407, 412, the court said that the rule "must not be so enlarged as to exceed its true scope and thereby made to include all inquiry into and consideration of purely legal matters by the trial judge which are in fact and reality merely careful and prudent preparation for the resumption and conduct of the trial." In the recent case of Carpenter v. Commonwealth, 193 Va. 851, 860, 71 S.E.2d 377, 382, the court stated: "The test to be applied in determining whether or not the statute has been violated is: Has the interest of the defendant been affected by the action of the judge?"
In connection with an annotation the following appears in 100 A.L.R. 478: "Even apart from any question of waiver, a mere temporary and voluntary absence of accused from the court room during his trial has been held in numerous cases, even those involving a capital offense, not to afford ground of error." To the same effect see 23 C.J.S. Criminal Law § 975, p. 902; 16 C.J., Criminal Law, Section 2071, page 818; *263 14 Am.Jur., Criminal Law, Section 199, page 906. The following statement appears in 14 Am.Jur., Criminal Law, Section 199, page 906: "It is clear the accused may waive any trial at all, for he may plead guilty and thus subject himself to the severest penalty which might follow a trial. Since he can do this, he may waive any mere privilege on the trial that is designed only to aid him in shielding himself from such result. If a person charged with crime flees, allowing him to take advantage of his own wrong and obtain his discharge or a new trial would savor of absurdity and positive injustice."
The rule so strictly applied in this case unnecessarily places in the hands of a crafty, resourceful accused person a frightful weapon with which deliberately to thwart all painstaking efforts of a court to accord to him every right provided by law; and we should not be so naive as to fail to recognize that many accused persons are quite crafty, resourceful and experienced.
Inasmuch as I am speaking only for myself, I would like to record the fact of my sympathy for the trial judge whose efforts to accord to the defendant the right here involved were defeated, not by any dereliction on his part, but rather by the one the judge was so sedulously endeavoring to protect in the enjoyment of that right. I can fully appreciate his impatience and exasperation when the situation developed without his knowledge or consent. He is the one who first noticed the absence of the accused, and he immediately suspended whatever was being done by him until the accused was returned to his presence. When this situation was urged as a basis of error, the trial judge stated:
"Now, do you mean to argue that whenever the Court goes to all the pains of taking the defendant in the Judge's chambers along with counsel for the State and the Defense, for the purpose of considering the instructions, and the defendant of his own volition walks out like a big horse, that he can take advantage of that?
* * * * * *
"The Court doesn't believe it. I gave him every opportunity to be present, had him come in, and take a seat, certainly the Court is not compelled to manacle him to his ankles or the desk to make certain the defendant is in there. * * *."
I trust that I am not employing inelegant or inappropriate language when I state that the defendant is not complaining that the trial court denied him any right; but rather that, figuratively speaking, the trial court did not cram such right down his throat. It is perhaps superfluous to observe that a trial judge, in the trial of an indictment charging a capital offense, has many things to engage his attention and faculties other than constantly keeping an eagle eye on the accused. We should not lose sight of the fact that the accused has the constitutional right to counsel whose primary function is and should be to see that his client is protected in the enjoyment of his rights.
I have not undertaken to assemble all the reported decisions sustaining the proposition that a brief, voluntary absence of the accused does not constitute reversible error when no prejudice to him appears to have resulted from such absence, but among the host of cases of that nature are the following: State v. McGinnis, 12 Idaho 336, 85 P. 1089; Doyle v. Commonwealth, 18 Ky. 518, 37 S.W. 153; State v. Maxwell, 151 Kan. 951, 102 P.2d 109, 128 A.L.R. 1315; State v. Gonce, 87 Mo. 627; State v. Rubaka, 82 Conn. 59, 72 A. 566; Nelson v. State, 190 Ark. 1027, 82 S.W.2d 519; State v. Henderson, 168 La. 487, 122 So. 591; Van Houten v. People, 22 Colo. 53, 43 P. 137; Barton v. State, 67 Ga. 653, 44 Am. Rep. 743; 100 A.L.R. 478; People v. Bragle, 88 N.Y. 585, 42 Am.Rep. 269; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; McClendon v. State, 36 Okl. Cr. 11, 251 P. 515; Henry v. State, 94 Fla. 783, 114 So. 523; Sobieski v. State, 126 *264 Tex.Crim.Rep. 405, 71 S.W.2d 534; 100 A.L.R. 479; State v. Bramlett, 114 S.C. 389, 103 S.E. 755; Vicks v. State, 42 Ga. App. 451, 156 S.E. 729; State v. Cherry, 154 N.C. 624, 70 S.E. 294.
The majority opinion expresses a reluctance to yield to that which is conceived to be a necessity of applying strictly the statutory provisions in this instance, and I believe the opinion, impliedly at least, suggests the possibility of a revision of the statute to lessen the stringency of its language. To the extent that I construe the majority opinion correctly in this respect, I heartily concur. I earnestly trust that the legislature will revise the statute, and yet I must confess that it causes in me a sensation which is by no means one of pride to appeal to the legislative branch of government to relieve the judicial branch of an absurdity which the Court itself has created and should rectify.
|
634 F.2d 368
209 U.S.P.Q. 796
The STATE OF NORTH DAKOTA, d/b/a Bank of North Dakota, Appellant,v.MERCHANTS NATIONAL BANK AND TRUST COMPANY, FARGO, NORTHDAKOTA; Red River National Bank and Trust Company, GrandForks, North Dakota; Jamestown National Bank, Jamestown,North Dakota; Union National Bank, Minot, North Dakota;Wahpeton National Bank, Wahpeton, North Dakota, Appellees.
No. 79-1342.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 16, 1980.Decided Aug. 6, 1980.
Peter B. Work, Crowell & Moring, Washington, D.C., and Maurice E. Cook, Sp. Asst. Atty. Gen., Bismarck, N. D., for appellant.
Frank J. Magill, Fargo, N. D., and David A. Ranheim, Paul J. Scheerer, and Darron C. Knutson, Minneapolis, Minn., for appellees.
Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., James R. Britton, U. S. Atty., Fargo, N. D., Ronald R. Glancz and Linda Jan S. Pack, Attys., Dept. of Justice, Civil Division, Appellate Staff, and Dorothy A. Sable and Marilyn Britwar, Attys., Washington, D. C., for amicus curiae, Comptroller of Currency.
Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges, En Banc.
HENLEY, Circuit Judge.
1
The State of North Dakota appeals from an order of the district court,1 granting the motion of the five defendant national banks to dismiss the State's complaint for failure to state a claim on which relief could be granted. The State had sought to enjoin defendants from using their newly adopted names, on the ground that the names were confusingly similar to that of the State's central bank and would thus violate the North Dakota common law of unfair competition. The district court based its dismissal on the finding that all state law otherwise applicable to name changes of national banks was preempted by section 30 of the National Bank Act (NBA). Although we conclude that the preemption effected by section 30 is somewhat limited in scope, we affirm the judgment of the district court.
FACTS AND PROCEDURAL BACKGROUND
2
In September, 1976 the five appellee national banks, all of which are located in North Dakota, applied to the Comptroller of the Currency under section 30 of the NBA2 to change their names to "First Bank of North Dakota (N.A.)-(city or town where located)." The State, which operated its central financial institution under the name "Bank of North Dakota," objected to the proposed changes and was allowed to present its arguments and evidence at a hearing before the Regional Administrator of the Comptroller's office. Subsequently, in February, 1977, the Comptroller approved all five name changes.
3
In March, 1977 the State brought this action against the Comptroller and the banks in the federal district court of North Dakota, seeking review of the Comptroller's decision and an injunction barring the banks from implementing the name changes. Shortly after the action was commenced, a preliminary injunction was denied, and in May, 1977 the new names became effective. In September, 1977 the district court held the Comptroller's decision was not arbitrary or capricious and dismissed the suit.
4
On appeal the State abandoned its argument that the Comptroller's decision was invalid, and this court therefore affirmed the district court's dismissal of all claims against the Comptroller. State of North Dakota v. Merchants National Bank & Trust Co., 579 F.2d 1112, 1113, 1115 (8th Cir. 1978). The State maintained, however, that the district court had ignored its pendent claim against the banks for violation of the state common law of unfair competition. Although this court found only an "oblique" reference to state common law in plaintiff's complaint and was "inclined to hold that the matter had not been properly presented to the District Court," the appellee banks "strenuously contend(ed) that the claim had been presented to and decided by the District Court." Id. at 1114. Therefore, this court considered the issue and, finding no mention of the common law claim in the trial court's opinion, remanded the case for further proceedings on that claim.
5
Upon remand, Judge Benson requested memoranda from the parties on whether the North Dakota common law of unfair competition was preempted by federal law in the area of name changes by national banks. Along with their memorandum on this point, defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In March, 1979 the court granted that motion. State of North Dakota v. Merchants National Bank & Trust Co., 466 F.Supp. 953 (D.N.D.1979).
6
The district court began its analysis by noting that "(t)he National Bank Act is a comprehensive code creating and regulating the national banks of the United States, 'constituting by itself a complete system for the establishment and government of national banks ....' " Id. at 954 (quoting Cook County National Bank v. United States, 107 U.S. 445, 448, 2 S.Ct. 561, 564, 27 L.Ed. 537 (1883)). The court then observed that some sections of the NBA expressly incorporate state law, whereas section 30 does not. The court concluded that "(b)y making reference to state law in other sections of the (NBA) and omitting all such reference in Section 30, Congress has signalled its clear intent that Section 30 is meant to be pre-emptive." Id. at 955. Finding that the state law of unfair competition, on which the State based its claim, was preempted, the court dismissed the suit. The State has appealed this decision.
JURISDICTION
7
A threshold question on this appeal, though not raised by either party, is whether the district court had subject matter jurisdiction of the State's common law unfair competition claim. In the opinion on the previous appeal of this case, then-Chief Judge Gibson noted:
8
Unless independent jurisdictional grounds are shown, the District Court may determine whether it should hear the case as within its pendent jurisdiction or dismiss without prejudice to relief being sought in state courts.
9
579 F.2d at 1115. On remand, the district court requested the parties to submit memoranda on whether the common law claim was properly before the court, and both parties responded that it was, as a pendent claim. The court proceeded to consider the claim on the merits, apparently concluding there was pendent jurisdiction. For the reasons stated below, we hold that pendent jurisdiction of the unfair competition claim existed and that its exercise in this case was proper.
10
The difficulty with finding pendent jurisdiction in the present case stems less from the nature of the claims themselves than from the fact that the two claims involved different defendants. If the difference in defendants is for the moment disregarded, it is clear that the case satisfied the constitutional requirements of pendent jurisdiction as set out in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).3 First, the claim arising under federal law was jurisdictionally "substantial." Second, the federal and state claims had a "common nucleus of operative fact" in the defendant banks' adoption of new names and the Comptroller's approval thereof. And third, plaintiff would ordinarily be expected to try both claims in one proceeding because a single interest of plaintiff's was affected.
11
Assuming these constitutional prerequisites are met, Gibbs further requires that, as a matter of discretion, pendent jurisdiction be exercised only when "considerations of judicial economy, convenience and fairness to litigants" will be served.4 In the present case, there are several reasons for assuming jurisdiction of the state claim. First, the substantial investment of judicial time and resources in the case, by both the district court and this court on the previous appeal, to a degree justifies the exercise of jurisdiction over the state claim, even after the federal claim has been dismissed from the suit.5 Second, the question whether the state claim is preempted by federal law is, as recognized in Gibbs,6 particularly suited for resolution in federal court. Finally, as regards "fairness to (the) litigants," both plaintiff and defendants urged the district court to decide the state claim.
12
Thus, the Gibbs requirements were fully satisfied in this case. Remaining is the question whether pendent jurisdiction of the unfair competition claim existed despite the fact that the defendants to that claim, the appellee banks, were not parties to the claim for review of the Comptroller's decision, upon which federal jurisdiction was based. The pre-Gibbs rule was that pendent jurisdiction would lie only if the federal and state claims involved the same parties. Someone like the appellee banks, as to whom there was no independent grounds for federal jurisdiction, could not be haled into federal court as the defendant on a pendent state claim. Although Gibbs broadened the general test for pendent jurisdiction, the facts in Gibbs did not require departure from this "same-parties" limitation. 3A Moore's Federal Practice P 20.07(5.-1), at 20-72 to -73 (2d ed. 1977); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3567, at 456-57 (1975).
13
On the other hand, nothing in the language or reasoning of Gibbs necessarily limited its applicability to cases where the defendant to the pendent claim was also a party to the federal claim. See Aldinger v. Howard, 427 U.S. 1, 20-21, 96 S.Ct. 2413, 2423, 49 L.Ed.2d 276 (1976) (Brennan, J., dissenting); Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809 (2d Cir. 1971) (quoting Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627, 629 (2d Cir. 1971)). Thus, after Gibbs but before Aldinger v. Howard, supra, many of the lower federal courts held that when the Gibbs standards are met, a district court has jurisdiction of a state law claim against a "pendent party," i. e., a defendant who is not a party to the federal claim and as to whom no independent basis for federal jurisdiction exists. See, e. g., Bowers v. Moreno, 520 F.2d 843, 846-48 (1st Cir. 1975); Curtis v. Everette, 489 F.2d 516, 519-20 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974); Almenares v. Wyman, 453 F.2d 1075, 1083 (2d Cir. 1971), cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 (1972); Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809-11 (2d Cir. 1971) (admiralty claim supported negligence claim against pendent party); Connecticut General Life Ins. Co. v. Craton, 405 F.2d 41, 48 (5th Cir. 1968); Lewis v. Brinegar, 372 F.Supp. 424, 428-29 (W.D.Mo.1974) (federal question claim against pendent party for less than jurisdictional amount). But cf. Hymer v. Chai, 407 F.2d 136, 137 (9th Cir. 1969) (wife's claim for loss of consortium could not be joined as pendent to husband's diversity action for negligence) ("Joinder of claims, not joinder of parties, is the object of" pendent jurisdiction). Although there does not seem to be an Eighth Circuit holding precisely on point with the issue in this case, several of our decisions have indicated a willingness to apply the doctrine of pendent jurisdiction in situations involving parties other than the original plaintiff and defendant.7
14
In Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), however, the Supreme Court made it clear that the Gibbs requirements are not the only preconditions of pendent party jurisdiction. The plaintiff in Aldinger asserted that because the Gibbs tests were satisfied, her state civil rights claim against a county was pendent to her claims against county officials under 42 U.S.C. § 1983. The Court disagreed, concluding that the addition of a new party to respond to the pendent claim called for additional analysis not necessary in Gibbs.
15
The Court reasoned as follows. In Gibbs, the defendant to the pendent claim had already been brought into federal court, pursuant to a jurisdictional statute, to answer to the federal claim. Hence, it could be said that Congress had intended for that kind of defendant to come within the purview of the federal courts. Since Congress had not, however, defined the scope of the "case" that might be brought against him, the Court was free to do so, determining what sort of state claim was part of the same constitutional "case." In contrast, the plaintiff in the pendent party situation seeks to use the Gibbs Court's definition of the scope of a "case" so as to bring into federal court a party whom Congress may never have intended to be there. The Aldinger Court thus perceived that the allowance of pendent party jurisdiction subject only to the restrictions stated in Gibbs "would run counter to the well-established principle that federal courts ... are courts of limited jurisdiction marked out by Congress." Id. at 15, 96 S.Ct. at 2420. For that reason, the Court stated that
16
(b)efore it can be concluded that (pendent party) jurisdiction exists, a federal court must satisfy itself not only that Art. III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.
17
Id. at 18, 96 S.Ct. at 2422.
18
Since federal jurisdiction in Aldinger was based on 28 U.S.C. § 1343(3), the jurisdictional counterpart of 42 U.S.C. § 1983, and because previous Court decisions established that Congress did not intend municipal corporations to be suable in federal court under those statutes,8 the Aldinger Court held that there was no pendent jurisdiction of plaintiff's claim against the county. The Court carefully limited its holding:
19
(W)e decide here only the issue of so-called "pendent party" jurisdiction with respect to a claim brought under §§ 1343(3) and 1983. Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, ... the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together.
20
Id. (footnote omitted; emphasis original).
21
In the present case, federal jurisdiction was based on the general federal question statute, 28 U.S.C. § 1331(a).9 As this court recently noted, "(t)he Supreme Court has not yet indicated whether pendent party jurisdiction may be exercised when primary jurisdiction is founded on 28 U.S.C. § 1331(a)." Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784, 789 n. 4 (8th Cir.), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979). After undertaking the analysis mandated by Aldinger, we are convinced that pendent party jurisdiction was not barred in this case.
22
On its face, the jurisdictional statute10 gives little indication of what Congress's attitude may have been toward the presence of parties like the appellee banks in suits based on the statute. The 1976 amendment of the section, however, which eliminated the required jurisdictional amount in suits for review of federal administrative actions,11 clearly showed that Congress considered those suits important enough to be allowed without regard to the amount in controversy. The pendent claim in this case seeks to enjoin conduct by private parties that was authorized by the administrative decision to be reviewed. The alleged ground for enjoining the private conduct is the same ground on which the administrative determination is challenged. Furthermore, in a suit like the present one, joinder of the private parties may be necessary if plaintiff is to obtain full relief. In short, the pendent claim in the present case is intimately intertwined with the federal one. In light of the 1976 amendment and Congress's implicit recognition of the importance of judicial review of administrative action, we find that Congress did not intend to exclude parties like the appellee banks from federal court in judicial review actions brought under section 1331(a).
23
Our conclusion is to some extent supported by the Aldinger dictum quoted above, relating to exclusive federal jurisdiction and the argument of judicial economy. Admittedly, there is no grant to the federal courts of exclusive jurisdiction of judicial review actions brought under section 1331(a). And cogent arguments have been made that state courts have power to enjoin unlawful acts of federal officials and thus, presumably, review federal administrative action, unless expressly barred by act of Congress.12 But most of the recent decisions on point deny such jurisdiction,13 and even if such an action could be brought in state court, the federal official probably would remove the case to federal court under 28 U.S.C. § 1442(a)(1).14 Thus, the entire suit is likely to end up in federal court, whether for reasons of exclusivity of jurisdiction or removal, and the situation resembles that posited in the Aldinger dictum.
24
Therefore, we hold that pendent jurisdiction of the unfair competition claim in the present case existed and that the district court did not abuse its discretion by ruling on the claim.
PREEMPTION
25
As noted, the district court found that Congress intended that section 30 of the NBA preempt all state law regulating name changes by national banks. On appeal, the State contests both the district court's theory that Congress intended to "occupy the field" and the more limited view that state unfair competition law "conflicts" with section 30 and is preempted for that reason.15 The appellee banks defend the district court's holding on slightly narrower grounds and, alternatively, argue that section 30 preempts the common law of unfair competition because the two conflict.
26
"Occupation of the Field "
27
Preliminarily we call attention to certain relevant remarks in Hart and Wechsler's The Federal Courts and the Federal System:
28
Federal law is generally interstitial in its nature. It rarely occupies a legal field completely, totally excluding all participation by the legal systems of the states.... (Federal legislation) builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for the special purpose. Congress acts, in short, against the background of the total corpus juris of the states in much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation.16
29
It seems reasonable to conclude that the quantum of evidence necessary to find a congressional intent to exclude state law from a given field should vary, depending on the relative generality of application of the state law to be excluded. In legislating in any given subject area, Congress is more likely to foresee, and form an intent about, potential overlap with special state laws which are directly addressed to the subject area under consideration. Possible intersections of the contemplated federal provisions and a body of general state law are more likely to be overlooked.17 Thus, in deciding whether a particular state law lies within a field that Congress intended to occupy, a court should define the bounds of that field in terms not only of the activity regulated but also the breadth of state law which Congress meant to preempt.
30
In the present case, the state law allegedly preempted was the common law of unfair competition, which applies to all business enterprises within a state. While the application of unfair competition law is not so general as a state's contract law or property law, for example, it certainly is more general than a state banking code. This distinction should be kept in mind throughout the discussion of whether Congress intended to preclude the application of unfair competition law to name changes by national banks.
31
The district court's finding that Congress intended section 30 to be preemptive was apparently based on two considerations: first, the "comprehensiveness" of the NBA provisions establishing and regulating national banks; and second, the incorporation of state law in certain sections of the NBA and the omission of any reference to state law in section 30. In considering its first reason the court relied on Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), which stated that preemptive intent on the part of Congress may be inferred from the "pervasiveness" of the federal regulatory scheme set up by Congress or from the dominant federal interest in a field which the legislation touches. The court cited several cases that spoke of the "completeness" of the NBA as a regulatory code, the "independence" of national banks from state legislation, and the status of those banks as "instrumentalities" of the federal government, subject only to the "paramount authority" of the United States, except where Congress otherwise permits. Easton v. Iowa, 188 U.S. 220, 229-31, 23 S.Ct. 288, 290, 47 L.Ed. 452 (1903); Davis v. Elmira Sav. Bank, 161 U.S. 275, 283, 16 S.Ct. 502, 503, 40 L.Ed. 700 (1896); Cook County Nat'l Bank v. United States, 107 U.S. 445, 448, 2 S.Ct. 561, 564, 27 L.Ed. 537 (1883); Farmers' & Mechanics' Nat'l Bank v. Dearing, 91 U.S. 29, 33-34, 23 L.Ed. 196 (1875). Two of these cases, Dearing and Easton, based findings of preemption on congressional intent to exclude state legislation from the field.
32
In the second part of its reasoning, the district court cited several sections of the NBA that adopted state law governing state banks as the rule applicable to a resident national bank.18 From the failure to refer to state law in section 30, the court concluded that Congress intended to preempt state regulation of name changes by national banks. For several reasons, we do not fully accept the rationale of the district court.
33
In general, a finding that Congress intended to preempt state regulation of a given field must be based on "an unambiguous congressional mandate to that effect." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147, 83 S.Ct. 1210, 1219, 10 L.Ed.2d 248 (1963) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. at 230, 67 S.Ct. at 1152 ("clear and manifest purpose of Congress" is necessary)). Insofar as the district court based its inference of preemptive intent on the comprehensiveness of federal regulation under the NBA, the inference is weakened by recent Supreme Court decisions, cautioning that a detailed statutory scheme may reflect the "nature and complexity of the subject," rather than an intent to displace state law. De Canas v. Bica, 424 U.S. 351, 359-60, 96 S.Ct. 933, 938, 47 L.Ed.2d 43 (1976); accord, New York State Dep't of Social Servs. v. Dublino, 413 U.S. 405, 414-15, 93 S.Ct. 2507, 2513-14, 37 L.Ed.2d 688 (1973). This observation seems particularly relevant in regard to the NBA.
34
Furthermore, the district court's holding that Congress intended to preempt state unfair competition law may be construed as going beyond the conclusion warranted by the court's reasoning. In the only two NBA cases cited by the court which actually grounded a finding of preemption on the intent of Congress, the preempted state statutes were special laws, applying only to financial institutions and transactions. In one of the cases, Easton v. Iowa, supra, the Court explicitly distinguished between a state's general and special criminal laws as regards their applicability to national banks. These cases do not support the conclusion that Congress intended to preempt state law of more general application, such as unfair competition law.
35
Similarly, the only "state law" that is incorporated in relevant sections of the NBA is state banking law, i. e., law of special application. Congress's failure to mention state law in section 30 or in most of the other sections of the NBA may be evidence of an intent to exclude almost all state banking code provisions from the field consisting of regulation of national banks. But that does not address the issue in this case: whether Congress intended to occupy a "field" sufficiently broad to exclude as well applications of state unfair competition law. It does not seem reasonable to expect Congress, in passing an act like the NBA, to refer expressly to every state law of general application that it does not wish to preempt. Therefore, we do not infer an intent to preempt unfair competition law from Congress's failure to mention that law in section 30.
36
The Supreme Court has stated what we believe to be a fundamental, if not the controlling, rule for analyzing preemption problems under the NBA:
37
(N)ational banks are subject to the laws of a State in respect of their affairs unless such laws interfere with the purposes of their creation, tend to impair or destroy their efficiency as federal agencies or conflict with the paramount law of the United States.
38
First National Bank in St. Louis v. Missouri ex rel. Barrett, 263 U.S. 640, 656, 44 S.Ct. 213, 215, 68 L.Ed. 486 (1924). With slight variations in wording, the Supreme Court has applied this principle over many years in various situations.19 If the First National Bank rule is applicable in the present case, unfair competition law should be held preempted only if its application to name changes by national banks would "conflict" with section 30 or with the NBA as a whole in one of the specified ways.
39
The appellees contend that the First National Bank rule applies only to matters concerning a national bank's day-to-day business. They argue that such matters must be distinguished from questions relating to the circumstances under which a national bank may exercise its banking franchise. Appellees assert that questions in this second category are subject to state law only when the NBA expressly so provides. They further argue that a national bank's decision to change the name under which it operates falls into the second category.
40
None of the Supreme Court cases applying the First National Bank rule draws this distinction, but appellees insist that the difference between the two kinds of questions was expressly recognized in Franklin National Bank v. New York, 347 U.S. 373, 74 S.Ct. 550, 98 L.Ed. 767 (1954). The Franklin Court held preempted the application to a national bank of a state statute prohibiting the use of the word "savings" in the business or advertising of any financial institution except a state-chartered mutual savings bank or state-chartered savings and loan association. Appellees focus on the following sentence and accompanying footnote in the opinion:
41
We find no indication that Congress intended to make this phase of national banking subject to local restrictions, as it has done by express language in several other instances.
42
Id. at 378, 74 S.Ct. at 554. In the footnote to this sentence, the Court listed several NBA sections adopting state law and then observed:
43
Even in the absence of such express language, national banks may be subject to some state laws in the normal course of business if there is no conflict with federal law. Cf. Anderson National Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692; McClellan v. Chipman, 164 U.S. 347, 17 S.Ct. 85, 41 L.Ed. 461.
44
Id. at n.7 (emphasis added). The appellees conclude that the Franklin Court (1) meant to distinguish between the activity regulated by the New York law and a national bank's "normal course of business," and (2) held the state statute preempted because Congress had spoken on the subject of a national bank's power to offer and, impliedly, advertise savings accounts, and had not expressly adopted state law.
45
We believe appellees have misread Franklin. In the first place, the advertising of savings accounts clearly seems to be part of a national bank's "normal course of business," and appellees' contention that the Franklin Court found otherwise is highly questionable. Assuming, however, that appellees have correctly characterized the issue as one concerning the "conditions (under which) a national bank may exercise its banking franchise," the finding of preemption in Franklin was not based on congressional intent to preempt the field. The Court defined the issue as whether the federal and state laws conflicted, and it found preemption only because the two statutes were "incompatible." Id. at 374, 378, 74 S.Ct. at 553. The sentence and footnote quoted above appeared in the opinion after the Court's finding that the two laws conflicted. The Court was merely making it clear that the state statute was not saved by any express provision in the NBA.
46
To summarize thus far, we hold that a finding that section 30 of the NBA preempts the application of unfair competition law to name changes by national banks cannot be premised on a presumed intent of Congress to exclude all state legislation from the field.
47
"Conflict"
48
Our conclusion that a finding of preemption in this case cannot be based on a congressional intent to "occupy the field" by no means ends the preemption inquiry. "Even if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute." Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). The First National Bank rule, discussed above, indicates that the state law in this case is void not only if the state and federal laws actually conflict, but also if the state law "interferes with the purposes for which" national banks were created or "impair(s) ... their efficiency as federal agencies." 263 U.S. at 656, 44 S.Ct. at 215, quoted at p. 377 supra. In more general terms, "(a) conflict will be found ... where the state 'law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Ray, 435 U.S. at 158, 98 S.Ct. at 994 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941)).
49
The appellee banks' first argument that the state and federal laws conflict is based on the language of section 30 concerning name changes:
50
Any national banking association, with the approval of the Comptroller of the Currency, may change its name .... A duly authenticated notice of ... the new name ... shall be sent to the Comptroller of the Currency; but no change of name ... shall be valid until the Comptroller shall have issued his certificate of approval of the same.
51
12 U.S.C. § 30 (1976). Appellees claim that this section expressly gives them the right to use any name approved by the Comptroller and that any state law limiting that right, such as unfair competition law, conflicts with the NBA and is therefore void. This argument is unsound.
52
First, the argument is invalid because it assumes its own conclusion. On its face, section 30 says nothing about whether a national bank complying with the section's provisions on name changes is also subject to state unfair competition law. Appellees have the unlimited right claimed under the section only if state unfair competition law cannot be applied to them. But this condition is the very proposition to be proved.
53
Secondly, we believe that appellees' argument approaches the preemption issue with undue emphasis on the rights of banks. The purpose of the National Bank Act was the creation of a uniform and stable national currency. Mercantile Bank v. New York, 121 U.S. 138, 154, 7 S.Ct. 826, 834, 30 L.Ed. 895 (1887). As the means to this end, Congress established a system of national banks under the supervision of the Secretary of the Treasury and the Comptroller of the Currency. In furtherance of the primary purpose of the Act various provisions undertake to prescribe rules governing the formation, operation and termination of national banks and to delegate regulatory power to the Comptroller, not to confer rights on the banks.20
54
While a finding of preemption would certainly benefit the appellees as well as other national banks by providing them, in effect, a substantial immunity from state unfair competition law, this immunity would only be an "incidental benefit," not directly related to the accomplishment of the central purpose of the NBA. We would be reluctant to hold that state law should be preempted because of conflict with a merely incidental aspect of the federal regulatory scheme.21 Thus, even if appellees could eliminate the circularity in their reasoning, in order to justify a finding of preemption on the grounds urged they would still have to show that the right claimed by them was necessary to the accomplishment of the objectives of Congress.
55
The appellees' second argument that section 30 conflicts with state law is based on the regulatory framework set up by the Comptroller for handling the various applications which the NBA requires to be submitted to him. In 1976 the Comptroller issued the following "policy statement" concerning name changes:
56
The Office of the Comptroller of the Currency (OCC) considers an application for change in corporate title to be primarily a business decision of the applicant. Such applications will be approved subject to the following limitations.
57
The proposed title must be sufficiently dissimilar from any other existing or proposed unaffiliated bank or depository financial institution, so as not to substantially confuse or mislead the public in a relevant market.
58
41 Fed.Reg. 47,964, 47,968 (1976).22 The Comptroller has also published procedural rules, intended to facilitate "informed decisions" on applications for new charters, establishment of branches, mergers, consolidations, relocations of main offices, changes of corporate titles, and other matters. See 12 C.F.R. § 5.1 (1980). These rules provide for local notice of all applications, the compilation of an administrative file open to the public, the right of any interested person to submit written comments and to obtain a hearing upon request, and, if a hearing is held, the calling of witnesses, the admissibility of evidence, and the preparation of a transcript. See id. §§ 5.2-.14.
59
Appellees argue that, in this case, state unfair competition law purports to govern the same subject matter governed by the federal law and regulations thereunder (name changes by national banks), with an eye to protecting the same interest (preventing confusion and deception of the public). In such a situation, appellees contend, the state law is preempted. For this proposition, they cite several Supreme Court decisions, the most recent being Ray v. Atlantic Richfield Co., 435 U.S. 151, 164-65, 98 S.Ct. 988, 997-98, 55 L.Ed.2d 179 (1978).
60
Apparently relying on the fact that the NBA does not expressly authorize the promulgation of rules and regulations by the Comptroller, the State responds that the purpose of the Comptroller, as evidenced in his policy statement, cannot be substituted for the purpose of Congress, revealed only in section 30. Looking at the statutory language and the legislative history of the section, the State maintains that Congress had only two purposes in mind in enacting the name-change provision of section 30: first, to provide an orderly method for national banks to change their names; and second, to free itself from the burdensome task of approving name-change applications-a task that resulted from the failure to include a provision like section 30 in the NBA as originally enacted, twenty-two years earlier.23 The State concludes that the purposes of section 30 and of state unfair competition law differ, that these purposes are complementary, and that no conflict results from requiring compliance with both laws by a national bank that wishes to change its name.24
61
As indicated, neither section 30 nor any general provision of the NBA expressly delegates legislative authority. Section 30 provides only that a name change by a national bank is subject to the "approval" of the Comptroller. It is established, however, that by requiring the Comptroller's "approval," Congress intended to confer discretionary authority on the Comptroller.25 See, e. g., First National Bank of Smithfield v. Saxon, 352 F.2d 267, 272 (4th Cir. 1965); cf. Federal Home Loan Bank Board v. Rowe, 284 F.2d 274, 278 (D.C.Cir.1960) (conferral of discretion on Federal Home Loan Bank Board); Apfel v. Mellon, 33 F.2d 805, 806-07 (D.C.Cir.) (conferral of discretion on Federal Reserve Board), cert. denied, 280 U.S. 585, 50 S.Ct. 35, 74 L.Ed. 634 (1929). Certainly the Comptroller has implied authority "to state publicly the manner in which he will exercise (this discretionary power), and any such public statement can be adopted through a rule-making procedure," although Congress has not "separately conferred a rule-making power on" the Comptroller. K. Davis, Discretionary Justice 78 (1969). See also K. Davis, Administrative Law Treatise § 5.03, at 147 (Supp.1976). This proposition, however, falls short of the conclusion that Congress intended to delegate preemptive law-making power to the Comptroller, and we are reluctant to hold that a finding of preemption in this case can be based solely upon the Comptroller's policy statement.
62
What we have just said makes it clear that if the application of state unfair competition law to name changes by national banks is preempted, it must be because of conflict between that law and the regulatory authority under section 30 itself. The State's analysis of the reason for the adoption of section 30 and the purpose of the section has been discussed above and seems to be essentially correct, as far as it goes. The problem is that it does not go far enough. An immediate purpose of the Forty-Ninth Congress, which enacted the original version of section 30, was, as the State contends, the removal from Congress's shoulders of the burden of enacting a private law whenever a national bank wished to change its name.26 At this stage of our inquiry, however, we are not only concerned with the intent of Congress, but also with the modus operandi of the scheme established by Congress, and whether the state law would interfere with the functioning of that scheme.
63
The possible reasons for Congress's requiring all name changes to be approved by the Comptroller, and the considerations which Congress may have expected the Comptroller to take into account in his decision-making, seem to be few. But the obvious reason for requiring approval of a name change is that Congress expected the Comptroller to compare a proposed name with those of other banks in the same area and decide whether the new name would be either identical to that of another bank or so similar that confusion would result. Such an inquiry seems to be the reasonably expectable result of authorizing a person to approve or disapprove name changes, while not providing any criterion for decision. Thus we hold that, in enacting section 30, Congress expected and implicitly authorized the Comptroller to compare the proposed name with the names of other nearby banks and to make his decision accordingly.
64
It is clear that this comparison will be very similar, if not identical, to the standard employed by a court in deciding a claim against a national bank for unfair competition by name infringement.27 If the Comptroller approved a bank's change of name, but a court found the bank liable in an unfair competition suit, the difference in results could only be explained as inconsistent applications of the same standard. The court judgment could, in effect, nullify the Comptroller's discretionary determination under section 30. If state unfair competition law is allowed to apply to name changes by national banks, such conflicts will be inevitable, not a mere possibility. See Goldstein v. California, 412 U.S. 546, 554-55, 93 S.Ct. 2303, 2308-09, 37 L.Ed.2d 163 (1973). As the Supreme Court observed in a slightly different context,
65
(a) multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law.
66
Garner v. Teamsters Local 776, 346 U.S. 485, 490-91, 74 S.Ct. 161, 166, 98 L.Ed. 228 (1953). We therefore hold that state unfair competition law, insofar as applied to Comptroller-approved name changes by national banks, is preempted because of conflict with section 30 of the NBA.
67
One final word should be added about the scope of our holding. The Supreme Court has noted that state law which is preempted solely because of conflict with federal law should be invalidated "only to the extent necessary to protect the achievement of the aims of the" federal act. Silver v. New York Stock Exchange, 373 U.S. 341, 361, 83 S.Ct. 1246, 1259, 10 L.Ed.2d 389 (1963), quoted in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 389, 38 L.Ed.2d 348 (1973), and De Canas v. Bica, 424 U.S. 351, 357-58 n.5, 96 S.Ct. 933, 937 n.5, 47 L.Ed.2d 43 (1976). Our holding is based on, and is intended to prevent, the inevitable conflict between the decisions of the Comptroller under section 30 and the judgments of courts applying unfair competition law to the same names. Thus, if a national bank uses a name that has not been approved by the Comptroller, the reason for our holding would not be implicated and the bank would be subject to any applicable provision of state unfair competition law.28
68
Similarly, the Comptroller's approval under section 30, and therefore our holding of preemption, extends only to the new name chosen by a national bank, and not to all of the contexts in which that name may be used. If the bank incorporates its new name in a deceptive, confusing, or misleading logo, letterhead, advertisement, or the like, the bank may be subject to liability under state unfair competition law.29
69
From what has been said it follows that the judgment of dismissal of the State's complaint should be without prejudice to assertion in an appropriate forum of any claim of unfair competition based on factors other than inherently deceptive similarity of defendants' new names to that of appellant.
70
So modified, the judgment of the district court is affirmed.
1
The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota
2
12 U.S.C. § 30 (1976) provides:
Any national banking association, with the approval of the Comptroller of the Currency, may change its name .... A duly authenticated notice of ... the new name ... shall be sent to the Comptroller of the Currency; but no change of name ... shall be valid until the Comptroller shall have issued his certificate of approval of the same.
3
In UMW v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court reformulated the previous "same-cause-of-action" test for pendent jurisdiction which had been established in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). The Gibbs Court stated:
Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim "arising under (federal law)," U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case." The federal claim must have substance sufficient to confer subject matter jurisdiction on the court.... The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
383 U.S. at 725, 86 S.Ct. at 1138 (citation and footnotes omitted; emphasis original).
4
The Gibbs Court emphasized that pendent jurisdiction
need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims ....
383 U.S. at 726, 86 S.Ct. at 1139 (footnote omitted).
5
See Rosado v. Wyman, 397 U.S. 397, 403, 405, 90 S.Ct. 1207, 1213, 1214, 25 L.Ed.2d 442 (1970); Koke v. Stifel, Nicolaus & Co., 620 F.2d 1340 at 1346-1347 (8th Cir. 1980) (citing Kuhn v. Letter Carriers Branch 5, 528 F.2d 767, 771 n. 6 (8th Cir. 1976)); Federal Prescription Serv., Inc. v. Amalgamated Meat Cutters, 527 F.2d 269, 274 (8th Cir. 1975); Gray v. Heat & Frost Insulators Local 51, 447 F.2d 1118, 1120 (6th Cir. 1971)
6
383 U.S. at 727, 86 S.Ct. at 1139:
There may ... be situations in which the state claim is so closely tied to questions of federal policy that the argument for exercise of pendent jurisdiction is particularly strong. In the present case, for example, the allowable scope of the state claim implicates the federal doctrine of pre-emption; while this interrelationship does not create statutory federal question jurisdiction, Louisville & N. R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 ((1908)), its existence is relevant to the exercise of discretion.
We note that this passage also supports our decision today in First Nat'l Bank of Aberdeen v. Aberdeen Nat'l Bank, 627 F.2d 843 (8th Cir. 1980), which holds that preemption of a state law claim brought in state court does not constitute grounds for removal of the action to federal court.
7
Almost on point with the present case is Schulman v. Huck Finn, Inc., 472 F.2d 864 (8th Cir. 1973). There, plaintiff brought suit for patent infringement and unfair competition against each of four defendants. The district court granted two of the defendants summary judgment on the patent claims, but denied their subsequent motions to dismiss for want of jurisdiction the state unfair competition claims against them. Interlocutory appeal was allowed, and this court affirmed the denials on two alternative grounds, one of which was that the unfair competition claims against the two appellants were pendent to the patent claims against the other two defendants. Although this holding seems at first glance to be an explicit application of pendent party jurisdiction, the procedural context clearly shows that the two appellants were not truly "pendent parties." Because jurisdictionally "substantial" claims of patent infringement had been brought against them, both appellants were subject to an independent ground of federal jurisdiction
In Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809 (8th Cir. 1969), an insurance company had brought a declaratory judgment action in federal court on diversity grounds against three parties: the company's alleged insured, an individual who had obtained a tort judgment against the insured, and that individual's wife, who had obtained a judgment against the insured for loss of consortium. Simultaneously, the wife began a direct action against the insurance company in state court, and the company removed that action to federal court on grounds of diversity, even though the wife's claim was for less than the jurisdictional amount. The district court denied the wife's motion to remand, and this court affirmed, mainly for reasons of Arkansas law. As a "supportive ground" for its holding, this court observed that the wife's claim against the insurer was pendent to the insurer's declaratory claim against the husband, which exceeded the jurisdictional amount. This reasoning was probably vitiated by Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) (each member of plaintiff class in Rule 23(b) (3) diversity class action must satisfy jurisdictional amount), but Hatridge nevertheless reflects an expansive view of the proper application of pendent jurisdiction.
In Reserve Mng. Co. v. EPA, 514 F.2d 492 (8th Cir. 1975) (en banc), this court held that pendent jurisdiction allowed the joinder of a party plaintiff as to whose claims there was no independent jurisdictional ground. Id. at 522 n. 55.
But see Gelley v. Astra Pharmaceutical Prods. Inc., 610 F.2d 558 (8th Cir. 1979), and Kack v. United States, 570 F.2d 754, 757 n. 4 (8th Cir. 1978) (quoting C. Wright, Handbook of the Law of Federal Courts § 19, at 65 (2d ed. 1970)). Most of the cases adopting the theory of pendent party jurisdiction were decided after 1970. See C. Wright, supra, § 19, at 75-77 (3d ed. 1976).
8
At the time Aldinger was decided, Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 484-86, 5 L.Ed.2d 492 (1961), and City of Kenosha v. Bruno, 412 U.S. 507, 511-13, 93 S.Ct. 2222, 2225-26, 37 L.Ed.2d 109 (1973), were controlling. The holding of those two cases that a municipal corporation was not a "person" within the meaning of § 1983, which was the ground for the specific result in Aldinger, was overruled by Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-73 n. 12, 98 S.Ct. 2396, 2402 n. 12, 57 L.Ed.2d 274 (1978), however, the Court reaffirmed the Aldinger "holding" that the issue whether a federal court has jurisdiction of a non-federal claim involves both constitutional and statutory questions
9
Since the NBA contains no provision for review of the Comptroller's decisions, and the Administrative Procedure Act is not an independent grant of jurisdiction, Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-85, 51 L.Ed.2d 192 (1977), judicial review of the Comptroller's determinations must be pursuant to 28 U.S.C. § 1331(a)
10
28 U.S.C. § 1331(a) (1976) provides:
The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States, except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.
11
Act of Oct. 21, 1976, Pub.L.No. 94-574, § 2, 90 Stat. 2721, added the "except" clause at the end of 28 U.S.C. § 1331(a), quoted in note 10 supra
12
See 1 Moore's Federal Practice P 0.6(5) (2d ed. 1959); Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964)
13
See, e. g., Alabama ex rel. Gallion v. Rogers, 187 F.Supp. 848, 852 (M.D.Ala.1960), aff'd per curiam sub nom. Dinkens v. Attorney General, 285 F.2d 430 (5th Cir.), cert. denied, 366 U.S. 913, 81 S.Ct. 430, 6 L.Ed.2d 236 (1961); Davidson Transfer & Storage Co. v. United States, 164 F.Supp. 571, 574 (D.Md.1958); Texas Eastern Transmission Corp. v. Bowie Lumber Co., 176 So.2d 735, 737-38 (La.Ct.App.), cert. denied, 248 La. 385, 178 So.2d 663 (1965); Fieger v. Glen Oaks Village, Inc., 309 N.Y. 527, 533-34, 132 N.E.2d 492, 494-95 (1956); 1 Moore's Federal Practice, supra note 12, at 1394 & n. 46, 1397. Our research disclosed no North Dakota case on point
14
28 U.S.C. § 1442 (1976) provides in part:
(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them ...:
(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office ....
15
The State further asks this court to grant it summary judgment on the unfair competition claim, on the grounds that the confusing similarity of the names "Bank of North Dakota" and "First Bank of North Dakota" is obvious. Appellees have strenuously objected. In light of our decision on the preemption question, it is unnecessary to consider this issue
16
P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's the Federal Courts and the Federal System 470-71 (2d ed. 1973)
17
See Hirsch, Toward a New View of Federal Preemption, 1972 U.Ill.L.F. 515, 543-44 (footnote omitted; emphasis added):
When Congress does focus attention on the relation of its acts to state laws dealing with the same subject matter, it looks to certain existing state laws. It is grotesquely unrealistic to suppose that Congress, in expressing a general intent to save or to preempt state laws, actively considered all possible state enactments touching the field of the federal law. Indeed Congress probably expresses such an intent without a comprehensive survey of existing state laws tangentially affecting the field of the federal law .... Consequently when Congress expressly or implicitly indicates an intention with respect to preemption, the proper application of that intention requires an inquiry into the state laws considered by Congress as the basis for its intention. Without an understanding of the types of state laws Congress considered in determining its policy respecting preemption, the Court cannot intelligently determine the legitimate limits within which that intent should be honored.
18
The sections referred to by the court were 12 U.S.C. § 36(b), (c) (power to establish and operate branch banks), id. § 85 (determination of interest chargeable on loans), and id. § 92a(a), (b), (i) (power to act as trustee or in other fiduciary capacity). Other sections of the Act adopting state law are id. § 24 (Eighth) (power to make contributions to charitable institutions) and id. § 90 (giving of security to state upon deposit of state funds)
19
See Anderson National Bank v. Luckett, 321 U.S. 233, 248, 64 S.Ct. 599, 607, 88 L.Ed. 692 (1944) (state statute providing for escheat of abandoned bank accounts was applicable to national bank); Lewis v. Fidelity & Deposit Co., 292 U.S. 559, 566, 54 S.Ct. 848, 851, 78 L.Ed. 1425 (1934) (condition in surety bond, given by national bank to state on deposit of state funds, providing that bank would "faithfully perform all duties required" by state, could be complied with by bank and did not invalidate bond when "duties," as currently defined, were not contrary to NBA); First National Bank in St. Louis, supra (national bank was subject to state statute prohibiting branch banking) (pre-McFadden Act case); McClellan v. Chipman, 164 U.S. 347, 356-57, 17 S.Ct. 85, 87, 41 L.Ed. 461 (1896) (state fraudulent conveyance statute was applicable to national bank); Davis v. Elmira Savings Bank, 161 U.S. 275, 283, 16 S.Ct. 502, 503, 40 L.Ed. 700 (1896) (state statute giving deposits of savings banks priority in payment by insolvent national bank was preempted because of conflict with NBA requirement of ratable distribution); Waite v. Dowley, 94 U.S. 527, 533, 24 L.Ed. 181 (1877) (state statute requiring cashier of resident national bank to furnish clerks of all towns where shareholders lived with annual lists of shareholders and amount paid in on their shares did not conflict with any NBA provision); National Bank v. Commonwealth, 76 U.S. (9 Wall.) 353, 362, 19 L.Ed. 701 (1870) (state tax on shares of resident national bank, and collection of tax directly from bank, were valid in view of NBA provision allowing such a tax)
More recent applications of the rule have been made by the lower federal courts. See, e. g., United Mo. Bank v. Danforth, 394 F.Supp. 774, 785 (W.D.Mo.1975); Brown v. United Community Nat'l Bank, 282 F.Supp. 781, 783 (D.D.C.1968); McKee & Co. v. First Nat'l Bank of San Diego, 265 F.Supp. 1, 5 (S.D.Cal.1967), aff'd per curiam, 397 F.2d 248 (9th Cir. 1968); South Dakota v. National Bank of S. D., 219 F.Supp. 842, 844-45 (D.S.D.1963), aff'd, 335 F.2d 444 (8th Cir. 1964), cert. denied, 379 U.S. 970, 85 S.Ct. 667, 13 L.Ed.2d 562 (1965).
20
Several recent cases have held that the NBA provision requiring the Comptroller to conduct regular examinations of all national banks does not impose on the Comptroller an actionable duty to an examined bank or its stockholders for damages arising from negligent performance of the statutory obligation. See Harmsen v. Smith, 586 F.2d 156 (9th Cir. 1978); In re Franklin Nat'l Bank Sec. Litigation (Franklin II), 478 F.Supp. 210, 214-16 (E.D.N.Y.1979); In re Franklin Nat'l Bank Sec. Litigation (Franklin I), 445 F.Supp. 723, 730-31 (E.D.N.Y.1978); cf. First State Bank of Hudson County v. United States, 599 F.2d 558, 562-64 (3d Cir. 1979) (same conclusion under examination provision of Federal Deposit Insurance Act), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980). It was said that "the Comptroller's primary duty is to supervise the banking system for the protection of the public and the national economy as a whole and not for the protection of an individual banking institution." Franklin II, 478 F.Supp. at 215; accord, Franklin I, 445 F.Supp. at 731. In Harmsen v. Smith, the Ninth Circuit stated:
Although bank examinations may reveal irregularities and even fraud, which discoveries may redound to the benefit of innocent persons, including stockholders, that result is merely an incidental benefit to the examined banks.
586 F.2d at 157, quoted in Franklin II, 478 F.Supp. at 215, and First State Bank of Hudson County, 599 F.2d at 563.
21
By referring to the "merely incidental" nature of a national bank's alleged right to change its name, we do not mean to imply that the name-change provision of section 30 differs in importance from the other provisions of the NBA. Appellees' argument is weak not because name changes were a matter of little concern to Congress, cf. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S.Ct. 773, 778, 3 L.Ed.2d 775 (1959) (dictum) (state law regulating activity that is "merely peripheral concern" of federal act does not conflict with federal law), but because the conflict asserted by appellees was between state law and the right of a national bank under section 30. That "right" is simply tangential to the full achievement of the purpose of the NBA. As discussed more fully below, the appropriate inquiry is whether application of the state law will conflict with the exercise of the regulatory authority granted the Comptroller by section 30
22
This statement was amended in August, 1979, see 44 Fed.Reg. 48,16 9, 48,170 (1979), and the current requirements appear to be substantially more restrictive. See 12 C.F.R. § 4.7 (1980)
23
The precursor of § 30 was originally enacted as the Act of May 1, 1886, ch. 73, § 2, 24 Stat. 18. It supplemented the National Bank Act, ch. 106, 13 Stat. 99 (1864)
24
The parties seem to agree that one concern of unfair competition law is preventing the deception of the public through a business's use of a tradename confusingly similar to that of another business. Whether this concern reflects an independent "purpose" of unfair competition law or whether, instead, confusion of the public is merely a means of determining that an individual company's goodwill has been usurped is not made clear in the decided cases. See 1 R. Callmann, The Law of Unfair Competition, Trademarks and Monopolies § 3.4, at 91-96 (3d ed. 1967). The parties have cited only one North Dakota case dealing with unfair competition by name infringement, Standard Oil Co. v. Standard Oil Co. of N. D., 123 F.Supp. 227 (D.N.D.1954), and that case does not address the question. Therefore, it cannot be stated with certainty that one purpose of North Dakota unfair competition law is protection of the public
Nevertheless, this uncertainty about the purpose of the state law need not impede the inquiry into whether the state and federal laws in this case conflict. Regardless of whether preventing public confusion is a separate purpose of unfair competition law, it is clear that public confusion is an essential element of an unfair competition suit for name infringement. See 18 Am.Jur.2d Corporations § 146 (1965); 74 id. Trademarks and Tradenames § 110 (1974). By adopting "substantial confusion of the public" as his test for ruling on name-change requests, the Comptroller has made it inevitable that his standards will overlap with those applied by a court in an unfair competition suit attacking the same name change.
25
In Apfel v. Mellon, 33 F.2d 805, 806-07 (D.C.Cir.), cert. denied, 280 U.S. 585, 50 S.Ct. 35, 74 L.Ed. 634 (1929), the court stated:
The word "approved" naturally imports the exercise of judgment and discretion; and the power to approve ordinarily implies a power to disapprove.
An examination of congressional legislation with regard to banking since 1864 shows that Congress has consistently used various forms of the word "approve" in the sense of conferring discretion upon the Comptroller of the Currency, the Secretary of the Treasury, or the Federal Reserve Board.
The State has cited two cases holding that section 30 does not preempt state unfair competition law as applied to name changes of national banks. First Nat'l Bank of Lander v. First Wyoming Sav. & Loan Ass'n, 592 P.2d 697 (Wyo.1979); Middletown Trust Co. v. Middletown Nat'l Bank, 110 Conn. 13, 147 A. 22 (1929). Both of these cases drew an analogy between the Comptroller's approval of a new name under section 30 and a state officer's approval of a new corporation's name, the latter of which decisions has been held not to immunize the corporation from liability for unfair competition through name infringement. The reason for this rule is that the state officer's approval is an ex parte, ministerial act, with no opportunity for the presentation of opposing views. Because we find that section 30 is a grant of discretionary authority, calling for an exercise of judgment, the decision of the Comptroller is clearly distinguishable from that of a state officer. We therefore decline to follow the two cited cases.
26
The meager legislative history of the name-change provision consists of a one-page report of the House Committee on Banking and Currency and brief comments in the floor debates in the House and the Senate. See 17 Cong.Rec. 1349-52 (1886) (House debate); id. at 1721-23 (Senate debate). The name-change provision was combined with provisions giving the Comptroller approval power over relocations and increases in the capital of national banks. Most of the floor debates pertained to the latter provisions. The second paragraph of the House Report reflects the dominant concern:
Numerous private bills have been introduced into the last and into the present Congress to change the names or locations of individual banks, or to increase their capital stock beyond the limits originally fixed in their articles of association. Each of these private bills occupies the time and burdens the calendars of committees and of the House. There is no reason why applications for such changes by individual banks should not be disposed of by the Comptroller of the Currency under conditions established by law.
H.R.Rep. No. 104, 49th Cong., 1st Sess. (1886), reprinted in 17 Cong.Rec. 1350 (1886).
27
See note 24 supra
28
This may be the situation in one of the companion cases hereto, First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir. 1980). The plaintiff there has alleged that the defendant used names other than the one approved by the Comptroller. See id., at 845 n.3
29
While no such issue was argued here, the plaintiff in First National Bank of Aberdeen, supra, has also alleged that the defendant, after gaining the Comptroller's approval of its new name, used the new name in signs and advertisements that were deceptively similar to plaintiff's. See id
Some of the factors that may prove determinative in an unfair competition suit against a national bank that uses its new name in a deceptive format were illustrated in Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. 895 (E.D.Ark.1960). In that case, the defendant had used a logo composed of its corporate name, which was somewhat similar to plaintiff's name, and its service mark-a statue of liberty-which was nearly the same as plaintiff's. In the logo, the words in defendant's name were set in the same style of type used by plaintiff, the words were arranged in the same positions as in plaintiff's logo, and the service mark appeared in the same position relative to the words. The court held that, although the full names of plaintiff and defendant were not deceptively similar, defendant was nevertheless liable for trademark infringement and unfair competition because the "overall format" of its logo was deceptively similar to that of plaintiff.
|
186 F.Supp.2d 487 (2002)
APPLERA CORPORATION, MDS Inc., and Applied Biosystems/MDS Sciex, Plaintiffs,
v.
MICROMASS UK LTD. and Micromass, Inc., Defendants.
No. CIV.A 00-105-RRM.
United States District Court, D. Delaware.
February 5, 2002.
*488 *489 *490 *491 Jack B. Blumenfeld, Esquire and Julia Heaney, Esquire, Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware; Walter E. *492 Hanley, Jr., Esquire, James Galbraith, Esquire, Lewis V. Popovski, Esquire, Jeffrey S. Ginsberg, Esquire, and Huiya Wu, Esquire, Kenyon & Kenyon, New York, New York; counsel for plaintiffs.
Robert W. Whetzel, Esquire and Chad Shandler, Esquire, Richards, Layton & Finger, Wilmington Delaware; James G. Hunter, Jr., Esquire, Kenneth G. Schuler, Esquire, and Kevin C. May, Esquire, Latham & Watkins, Chicago, Illinois; counsel for defendants.
MEMORANDUM OPINION
MCKELVIE, District Judge.
This is a patent infringement case. Plaintiff Applera Corporation, formerly known as PE Corporation, is a Delaware corporation with its principal place of business in Norwalk, Connecticut. Plaintiff MDS Inc. is a Canadian corporation with its principal place of business in Toronto, Canada. Plaintiff Applied Biosystems/MDS Sciex, formerly known as Perkin-Elmer Sciex Instruments, is a Canadian partnership formed under the laws of Ontario and having a place of business there. Applera and MDS are general partners of Applied Biosystems/MDS Sciex. MDS is the owner of U.S. Patent No. 4,963,736 (the '736 patent), entitled "Mass Spectrometer and Method and Improved Ion Transmission." Applied Biosystems/MDS Sciex is the exclusive licensee of the '736 patent. The plaintiffs will be collectively referred to as AB/Sciex, although MDS, as owner of the patent, will be referred to individually when appropriate.
Defendant Micromass UK Ltd. is a British corporation with its principal place of business in Manchester, United Kingdom. Micromass UK manufactures mass spectrometers sold under the name Quattro Ultima. Defendant Micromass, Inc. is a Massachusetts corporation with its principal place of business in Beverly, Massachusetts. Micromass, Inc. distributes and sells the Quattro Ultima in the United States. When necessary, the defendants will be referred to collectively as Micromass.
On February 18, 2000, AB/Sciex filed its complaint in this action alleging that the defendants infringe one or more claims of the '736 patent. On July 10, 2000, Micromass Inc. filed its answer, affirmative defenses, and counterclaims and Micromass UK moved to dismiss the case for lack of personal jurisdiction. Micromass UK later withdrew the motion to dismiss and filed its answer, affirmative defenses, and counterclaims. On November 15, 2000, both defendants filed their amended answer, affirmative defenses, and counterclaims. The defendants' counterclaims seek a declaratory judgment that '736 patent is invalid and unenforceable, and allege that AB/Sciex has filed this suit in an improper effort to maintain monopoly power in violation of section 2 of the Sherman Act, 15 U.S.C. § 2, or attempted or conspired to do so.
On December 13, 2001, the court held a hearing in accordance with Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), to construe the disputed claims of the '736 patent. The parties sought construction of almost every limitation in the patent's two independent claims. Among the many limitations considered, the principal disputes between the parties relate to the claim terms "first" and "second," "end to end" and "aligned," and the structure accompanying certain means-plus-function limitations. This is the court's construction of the disputed claims.
I. FACTUAL AND PROCEDURAL BACKGROUND
The court draws the following facts from the complaint, the '736 patent, its prosecution *493 and reexamination history, and the submissions of the parties.
A. Background of the Technology
Mass spectrometers analyze trace substances in a sample gas or liquid and provide information about the molecular weight or chemical structures of compounds in the trace substance. They are commonly employed in analytical chemistry for a variety of uses, including testing for the presence of drugs in bodily fluids or testing food and drink for minimum quality standards. Mass spectrometers operate by applying an electrical charge to the molecules of the substance being analyzed, resulting in charged molecules known as ions. The substance being analyzed can then be separated into its constituent parts by applying an electrical charge to the ions that separates them based on the ratio of their molecular weight to the charge.
Figure 1 from the '736 patent can be used to illustrate the basic workings of the type of mass spectrometer, typically called a quadrupole mass spectrometer, that AB/ Sciex argues is at issue in this case.
In a quadrupole mass spectrometer, ions are generated by introducing a trace substance into a duct (14). The trace substance is then ionized in the ionization chamber (16) by applying an electric charge with an electric discharge needle (18). The desired ions are then separated from the ambient gas (introduced through duct 44) and the undesired ions by two rod sets (32 and 40). A rod set is a group of electrodes (four in a quadrupole, six in a hexapole, etc.) shaped as rods, spaced equally apart to define an elongated central space through which the ions travel. The two quadrupole rod sets are each two-dimensionally represented in Figure 1 (32 and 40).
A typical quadrupole mass spectrometer uses two types of rod sets (32 and 40), each set in a separate vacuum chamber (30 and 38). One set of rods (32), known as an ion guide, uses an alternating current (AC) to channel the ions entering the device into the central space between the rods. By alternating the positive and negative charges in adjacent rods, the ion guide forces the ions to oscillate between the rods while traveling down their length. This is known as "strong focusing." The ambient gas, meanwhile, is pumped out of the vacuum chamber (31).
By directing ions into a vacuum chamber containing an ion guide, the ions are separated from the background gas in the chamber and channeled by the ion guide into a central stream. The central stream proceeds through a small orifice (34) and into another vacuum chamber (38), which *494 contains another rod set (40) and vacuum pump (39). This second set of rods, known as a mass filter, applies both an AC voltage and a direct current (DC) voltage to select ions of a particular mass-charge ratio. The mass filter is arranged so that the ion stream can proceed from the ion guide rod set in the first vacuum chamber, though an orifice, and into the mass filter rod set in the second vacuum chamber. The mass filter then uses a particular voltage to separate the desired ions from the undesired, and the desired ions continue to a detector (48) that records their presence.
According to the '736 patent, it was believed "[i]n the past" that the ion transmission through the device "increases with lowered gas pressure" in the vacuum chambers, also called cells. "For example the classical equation for a scattering cell shows that the ion signal intensity (ion current) transmitted through the cell decreases with increasing gas pressure in the cell." '736 Patent, Col. 1, ln. 33-37.
Unfortunately the resultant need for low pressures in the region of the ion optic elements has in the case of gassy ion sources required the use of large and expensive vacuum pumps. This greatly increases the cost of the instrument and reduces its portability.
Id. at Col. 1, ln. 37-41. The inventors of the '736 patent sought to solve this problem. As more fully described below, the inventors discovered that the "classical equation" was flawed and that increasing the pressure in the ion guide, within certain parameters, could improve ion signal intensity.
B. The '736 Patent
On October 16, 1990, the U.S. Patent and Trademark Office (PTO) issued the '736 patent, entitled "Mass Spectrometer and Method and Improved Ion Transmission." Donald J. Douglas and John B. French are its inventors and MDS Health Group Limited is the assignee. The '736 patent describes a mass spectrometer employing both an ion guide and mass filter located in separate vacuum chambers, as shown in Figure 1. What was novel about the invention, according to its specification, was the particular parameters of pressure, rod length, and voltage used to maximize transmission of ions from the ionization chamber (16) to the detector (48), thereby improving its sensitivity. Because, in accordance with the suggested parameters, the pressure in the ion guide chamber (30) was higher than previously used, "smaller, cheaper pumps" could be used to make the device more easily transportable.
According to the '736 patent's abstract, the vacuum chamber (38) containing the mass filter (40) is kept at a low pressure, such as 0.02 millitorr or less. In contrast, the vacuum chamber (30) containing the AC-only rods (32) that act as an ion guide is kept at a comparatively higher pressure, defined in terms of the product of the pressure and the length ("P × L") of the rods. The patent claims state that the product of the length of the rods and the pressure should be equal to or above 2.25 × 10-2 torr cm, and the specification further explains that the P × L parameter should preferably be between 6 × 10-2 and 15 × 10-2 torr cm. In addition, a DC voltage employed between the inlet (26) and the AC-only rods (32) in the ion guide is kept low, "e.g. below 1 and 30 volts, preferably between 1 and 10 volts." As a result of utilizing these parameters, the inventors found "a large enhancement in ion signal, with less focussing aberration and better sensitivity at high masses."
The inventors reported that "the reasons for this [improvement in ion signal intensity] are not fully understood," '736 Patent, Col. 1, ln. 49-50, but hypothesized why they thought it occurred. They described that the use of the above parameters produces "a kind of collisional focussing *495 [sic] or damping effect," id., Col. 6, ln. 66-67, that forced ions toward the center line of the ion guide. By adjusting the pressure in the first vacuum chamber (30) to a level comparatively higher than previously thought and varying it depending on length of the rods (32), and by manipulating the DC voltage between the inlet orifice (26) and the ion guide rod set (32) to a lower level than normal, the user of the invention could achieve improved ion transmission.
The '736 patent contains 24 claims, two of which are independent and 22 are dependent. The two independent claims are 1 and 14. Claim 1, an apparatus claim, recites:
1. A mass spectrometer system comprising:
(a) first and second vacuum chambers separated by a wall, said first vacuum chamber having an inlet orifice therein,
(b) means for generating ions of a trace substance to be analyzed and for directing said ions through said inlet orifice into said first vacuum chamber,
(c) a first rod set in said first vacuum chamber extending along at least a substantial portion of the length of said first vacuum chamber, and a second rod set in said second vacuum chamber, each rod set comprising a plurality of elongated parallel rod means spaced laterally apart a short distance from each other to define an elongated space therebetween extending longitudinally through such rod set, said elongated spaces of said first and second rod sets being first and second spaces respectively, said first rod set being located end to end with said second rod set so that said first and second spaces are aligned,
(d) an interchamber orifice located in said wall and aligned with said first and second spaces so that ions may travel through said inlet orifice, through said first space, through said interchamber orifice, and through said second space,
(e) means for applying essentially an AC-only voltage between the rod means of said first rod set so that said first rod set may guide ions through said first space,
(f) means for applying both AC and DC voltages between the rod means of said second rod set so that said second rod set may act as a mass filter for said ions,
(g) means for flowing gas through said inlet orifice into said first space,
(h) means for pumping said gas from each of said chambers,
(i) the pressure in said second chamber being a very low pressure for operation of said second rod set as a mass filter,
(j) the product of the pressure in said first chamber times the length of said first rod set being equal to or greater than 2.25 × 10-2 torr cm but the pressure in said first chamber being below that pressure at which an electrical breakdown will occur between the rod means of said first rod set,
(k) and means for maintaining the kinetic energies of ions moving from said inlet orifice to said first rod set at a relatively low level, whereby to provide improved transmission of ions through said interchamber orifice.
'736 Patent, Col. 14, ln. 24Col. 15, ln. 7.
Claim 14, a method claim, recites:
14. A method of mass analysis utilizing a first rod set and a second rod set located in first and second vacuum chambers respectively, said first and second rod sets each comprising a plurality of rod means and defining longitudinally extending first and second spaces respectively located end-to-end with each other and separated by an interchamber orifice so that an ion may travel through said first space, said interchamber orifice and said second space, said method comprising:
*496 (a) producing outside said first chamber ions of a trace substance to be analyzed,
(b) directing said ions through an inlet orifice in an inlet wall into said first space, first through said first space, said interchamber orifice and then through said second space, and then detecting the ions which have passed through said second space, to analyze said substance,
(c) placing an essentially AC-only RF voltage between the rod means of said first set so that said first rod set acts to guide ions therethrough, through,
(d) placing AC and DC voltages between the rod means of said second rod set so that said second rod set acts as a mass filter,
(e) admitting a gas into said first chamber with said ions,
(f) pumping said gas from said first chamber to maintain the product of the pressure in said first chamber times the length of said first rod set at or greater than 2.25 × 10-2 torr cm but maintaining the pressure in said first chamber below that pressure at which an electrical breakdown would occur between the rods of said first set,
(g) pumping gas from said second chamber to maintain the pressure in said second chamber at a substantially lower pressure than that of said first chamber, for effective mass filter operation of said second rod set,
(h) and controlling the kinetic energy of ions entering said first rod set to maintain such kinetic energy at a relatively low value, whereby to provide improved transmission of said ions through said interchamber orifice.
'736 Patent, Col. 15, ln. 51 Col. 16, ln. 29. The patent's specification contained two preferred embodiments. The first, Figure 1, was the basic quadrupole mass spectrometer structure discussed above. The second, Figure 12, was basically a reproduction of the first, with a few slight modifications and additions, including an empty vacuum chamber (70) between the curtain gas chamber (24) and the ion guide's vacuum chamber (30').
C. The Prosecution History
MDS filed the application for the '736 patent on November 15, 1989. The application describes the basic structure of a quadrupole mass spectrometer and notes that much of the structure and method of operation recited within is also detailed in U.S. Patent No. 4,328,420, an earlier patent filed by one of the same inventors, John B. French. The '736 patent application *497 cites two articles by Dr. Richard Smith, et al., entitled "On-Line Mass Spectrometric Detection for Capillary Zone Electrophoresis," 59 Anal. Chem. 1230 (Apr. 15, 1987) (the "1987 Smith article"), and "Capillary Zone Electrophoresis Mass Spectrometer Using an Electrospray Ionization Interface," 60 Anal. Chem. 436 (March 1, 1988) (the "1988 Smith article").
According to the '736 patent, the two Smith articles demonstrate the "classic theory" that the ion signal is improved by keeping the pressure in the ion guide's vacuum chamber relatively low. The 1987 Smith article shows operation of an AC-only rod set in a vacuum chamber at 8 × 10-4 torr and the 1988 Smith article shows an AC-only rod set in a vacuum chamber at 1 × 10-6 torr.
On May 8, 1990, the patent examiner issued a final office action allowing all 24 claims of the '736 patent, stating that "prior art does not teach to operate an AC only quadrupole, used to guide ions to a mass analyzing quadrupole in a high vacuum chamber, at a pressure such that the product of the length of the AC only quadrupole times the pressure in its chamber is greater than or equal to 2.25 × 10-2 torr cm." The '736 patent issued on October 16, 1990.
D. The Reexamination History
On January 10, 1997, attorneys representing MDS sent a letter to Micromass UK, asserting that an employee of Micromass UK had recently published an article describing a hexapole rod set in a vacuum pressure similar to that disclosed in MDS's '736 patent. The letter commented that "this device, if sold, will infringe the claims of the" '736 patent and its Canadian counterpart. Micromass UK responded by letter dated April 16, 1997, stating that it did not believe its product infringes and citing several references published prior to the application for '736 patent, including: (1) French, European Patent Application, Publication No. 0 023 826, February 11, 1981 (the "French application"); (2) Boitnott et al., Optimization of Instrument Parameters for Collision Activated Decomposition (CAD) Experiments for a Finnigan Triple Stage Quadrupole GC/MS/MS/DS, 1981 Pittsburgh Conference On Analytical Chemistry and Applied Spectroscopy, Abstract No. 782 (the "Finnigan abstract"); (3) Boitnott et al., Optimization of Instrument Parameters for Collision Activated Decomposition (CAD) Experiments for a Triple Stage Quadrupole (TSQTM GC/MS/MS/DS, Finnigan Topic 8160 (the Finnigan paper)); (4) Caldecourt et al., An Atmospheric-Pressure Ionization Mass Spectrometer/Mass Spectometer, International Journal of Mass Spectrometery and Ion Physics, Vol. 49, p. 233-251 (1983) (the "Caldecourt article").
On September 30, 1997, MDS filed a request for reexamination with the PTO, citing the four references mentioned in Micromass UK's letter and four additional references, including another European patent application and three articles.
1. Ion Trap References
In its request for reexamination, MDS described the four new references not disclosed by Micromass as "ion trap" references and distinguished them from the '736 patent on the basis that the claimed invention did not trap ions in the system for analysis. This distinction is relevant to the court's claim construction because Micromass now argues that MDS disclaimed that the '736 patent "traps" ions for a significant period of time, as the ion trap references of prior art would suggest. For example, one of the ion trap references was Schaaf et al., Trapped Ion Density Distribution in the Presence of He-Buffer Gas, Applied Physics, Vol. 25, pp. 249-251 (1981) (the Schaaf article). MDS *498 explained that "Schaaf's ion trap operates on a fundamentally different principle than the claimed mass spectrometer. With an ion trap, ions of a selected range of mass to charge ratios are trapped or stored for a period of time (which can be quite lengthy) due to electric fields generated with electrodes." Request for Reexamination at 6. In contrast, MDS argued that in the claimed invention, "[t]he first rod set receives essentially only an AC voltage so that ions are guided through the first vacuum chamber without being trapped there." Id. at 7.
2. Tandem References
MDS also distinguished the four references provided by Micromass, describing the structure they reveal as a "tandem mass spectrometer." Micromass refers to them instead as "triple stage mass spectrometers," and states that the Quattro Ultima is a "triple stage" or "tandem" mass spectrometer.
According to MDS, in a tandem mass spectrometer ions proceed through a quadrupole AC-DC mass filter (10, in the figure below), then a collision cell containing an AC-only rod set (14), and then another quadrupole AC-DC mass filter (12). The collision cell accepts ions not filtered out by the first mass filter, then collides those ions into a gas at high energy, causing them to fragment. The fragments are called "daughter ions" and then proceed into the second mass filter for further filtering for the desired fragments. The basic structure of a tandem mass spectrometer is shown here.
Micromass argues that MDS's distinction between a tandem mass spectrometer and the claimed invention is significant to the construction of the claim terms "first" and "second." For example, MDS explained that the "first rod set" (ion guide) in the claimed invention is comprised of AC-only rods, while the "second rod set" (mass filter) in the claimed invention are AC-DC rods. It also explained that the "first vacuum chamber" in the claimed invention has a product of the pressure and length of the rods of 2.25 × 10-2 torr cm, while the "second vacuum chamber" has a lower pressure. Given these characteristics of the claimed invention, MDS distinguished the tandem references as follows:
The French application also differs from the system of the invention in other *499 ways. For instance, whereas the first rod set in the invention receives essentially an AC-only voltage, the first section in the French application receives both AC and DC voltages. Whereas the first vacuum chamber of the invention has a product of its pressure with the length of the first rod set equal or greater than 2.25 × 10-2 torr cm, whereby the pressure is at least 1.5 millitorr for a 15 cm rod set, the first section in the French application states that the pressure must be maintained low, typically at 10-5 torr. Further, whereas the second rod set in the invention receives both AC and DC voltages to act as a mass filter, the second section in the French application receives an AC only voltage and is for inducing dissociation of ions. The second chamber of the invention is at very low pressure while the French application states that the pressure in the second section may be varied from 0.1 millitorr to 10 millitorr.
Id. at 13-14; see also id. at 16 (Finnegan abstract), 19 (Finnigan paper), and 21 (Caldecourt article).
MDS did not, however, distinguish the tandem mass spectrometers based solely on the placement of the various rod sets and vacuum chambers. It also described operational differences. For example, MDS distinguished the French application by stating:
The French application differs from the system of the invention in that it relates to a three-stage mass spectometer having two end sections for acting as mass filters and a center quadrupole section for producing collision induced dissociation of parent ions into fragment or daughter ions. A collision cell, such as the one described in the French application, dissociates a parent ion into fragment ions by creating conditions whereby a high energy parent ion collides with a high pressure gas. The use of a high pressure gas is therefore well known with mass spectrometers that have collision cells. A mass spectrometer according to the invention, on the other hand, is intended to improve the transmission of ions through a cell. The mass spectrometer according to the invention uses an increased pressure to improve ion transmission and maintains `the kinetic energies of ions moving from said inlet orifice to said first rod set at a relatively low level' (claim 1). The French application would therefore teach away from the invention since it collides ions at high kinetic energies into a high pressure region to dissociate the ions into daughter ions, which is in contrast to the invention which uses low kinetic energy ions and an increased pressure to produce an improved transmission of ions entering the device.
Request for Reexamination at 13. MDS identified similar distinctions for the Finnigan abstract, see id. at 15-16, the Finnigan paper, see id. at 18, and the Caldecourt article, see id. at 21-22.
3. PTO Proceedings
The PTO examiner granted MDS's reexamination request, stating that there "is a substantial likelihood that a reasonable examiner would consider these teachings important in deciding whether or not the claims are patentable." The PTO examiner discussed with particularity the relevance of the French application, the Finnigan abstract, and the Finnigan paper to the patentability of the claims of the '736 patent.
In an Office Action on February 3, 1998, the PTO examiner rejected all the claims of the '736 patent as obvious under paragraph 2 of 35 U.S.C. § 103(a). The examiner considered the structure disclosed in the French application and the voltage parameters disclosed in the Finnigan abstract and paper and concluded, "[i]t would have been obvious to a person having ordinary *500 skill in the art to control the energies of the ions entering the French apparatus in accordance with the teachings of [the Finnigan abstract and paper] by providing DC voltage between the rods of the first quadrupole and the inlet wall."
On March 11, 1998, the PTO examiner met with Donald Douglas, inventor of the technology in the '736 patent, to discuss the patentability of its claims. In his interview summary, the examiner indicated that he and Douglas reached agreement on all claims. He described that agreement as follows.
Applicant could remove French et al. as a reference by establishing that the product of the pressure and length of the AC only quadrupole described in the reference when that quadrupole was used as a collision cell between two mass analyzing quadrupoles to fragment ions was not intended to be used when that quadrupole was used only as an ion guide and not to fragment the ions.
Thus, the examiner acknowledged the distinction between an ion guide and collision cell.
On April 30, 1998, MDS filed an Amendment to the '736 patent to add new dependant claims 25-30, which will be discussed separately. The Amendment was accompanied by a declaration from Dr. French, the second inventor indicated on the '736 patent and the inventor of the '420 patent and the French European patent application. In that declaration, French recited the distinction drawn during the interview with Douglas. "The French application does not suggest that the recited pressure range and rod length may be used in a quadrupole section which acts as an ion guide and which is not intended to fragment the ions."
On June 2, 1998, the PTO issued a final Office Action in which it stated that claims 1-24 of the '736 patent were patentable, but rejected the new claims 25-30 as indefinite under paragraph 2 of 35 U.S.C. § 112. With respect to claims 1-24, the examiner stated that the "declaration of Dr. French filed on June 3, 1998 establishes that the apparatus disclosed in the French application does not operate with a product of pressure and rod length greater than or equal to 2.25 × 10-2 torr cm in a chamber containing a rod set operated with only AC voltages applied."
On August 12, 1998, MDS filed a Response After Final Office Action in which it submitted that claims 25-30 are patentable. The Response also listed further reasons, not cited by the examiner, why MDS believed claims 1-24 were not suggested by the French application. MDS listed the following four reasons why the French application did not suggest the claimed invention: "(1) the French application teaches away from the invention by suggesting that pressure be reduced in the first chamber, (2) the French application does not suggest the product of pressure and rod length in the first chamber, (3) the French application does not suggest collisional focusing, (4) the French application does not suggest improving the transmission of ions entering the first chamber."
Following further correspondence between the PTO and MDS, the PTO issued a Reexamination Certificate dated May 25, 1999 which confirmed the patentability of claims 1-24 and allowed claims 25-30.
E. The New Claims
As noted, the PTO examiner initially rejected all of MDS's new claims as indefinite under 35 U.S.C. § 112. Of the six new claims, claims 25 and 26 are dependant on claim 1 and the remainder are dependant on claim 14. Although neither party seeks construction of the terms in the new claims, Micromass argues that statements made during the prosecution of claims 25 and 26 are relevant to the construction of the terms "end to end" and *501 "aligned" in claim 1. Claims 25 and 26 state:
25. The mass spectrometer system as set forth in claim 1, wherein a first longitudinal axis of the first rod set intersects a second longitudinal axis of the second rod set.
26. The mass spectrometer system as set forth in claim 1, wherein the first rod set is parallel to the second rod set.
The examiner stated that claim 25 was rejected because its new limitation, the intersection of the longitudinal axes of the rod sets, "contradicts the limitation set forth in parent claim 1 that the rods in each rod set `define an elongated space ... extending longitudinally though such rod set' and the two rod sets are located end to end with each other `so that said first and second spaces are aligned.'" To make his point, he then posed the question, "[h]ow can the two longitudinal axes of the rod sets intersect if they are aligned?"
In the Response After Final Office Action filed by MDS on August 12, 1998, MDS sought to answer the examiner's question. It argued that the term "aligned" did not require alignment on one parallel axis:
The use of the term "aligned" in claim 1, however, does not necessarily mean that the first and second rod sets are parallel to each other. Webster's Ninth New Collegiate Dictionary, for instance, defines "align" as "to bring into alignment" and also as "to be in or come into precise adjustment or correct relative position" (emphasis added). The term "alignment," moreover, is defined as "the act of aligning or state of being aligned, esp: the proper positioning or state of adjustment of parts ... in relation to each other."
Response After Final Office Action, at 2 (emphasis added). After noting that the term "aligned" did not require the rod sets to be parallel, MDS argued that therefore the longitudinal axes of the rod sets "could be at an angle relative to each other while at the same time the first and second spaces are aligned to each other." Id. at 3. Alternatively, MDS argued that even if the longitudinal axes were parallel, the two axes would nonetheless "intersect" because "`intersect' can mean that the axes cross over each other or are parallel to each other." Id.
With respect to claim 26 and its requirement that the rod sets be parallel, MDS argued that it had established, in its discussion of claim 25, that the requirement that the first and second spaces be aligned did not require that the rod sets that define the spaces be parallel to one another. "Instead, the first space could be at an angle relative to the second space and the two spaces could be aligned by having the ends precisely located relative to each other so that their ends abut." Id. at 4. Therefore, MDS submitted that claim 26's limitation of parallel rod sets was not already part of claim 1 and could be patented.
On May 25, 2000, the PTO issued the Reexamination Certificate for the '736 patent allowing the new claims.
F. The Accused Product: The Quattro Ultima
AB/Sciex argues that Micromass's Quattro Ultima satisfies all of the claim limitations of at least claims 1 and 14 of the '736 patent. As noted, the Quattro Ultima is a tandem mass spectrometer that contains, among other structures, a quadrupole mass filter, then a collision cell (in this case, a hexapole collision cell), and another quadrupole mass filter. Those structures are shown in vacuum chamber 4 in the schematic below, which was furnished by Micromass as a simplified example of the Quattro Ultima's structure.
*502
Ions enter the Quattro Ultima from a source and then enter an initial vacuum chamber (vacuum chamber 1). That vacuum chamber has an orifice in it, permitting ions and gas to flow into vacuum chamber 2, which contains what Micromass refers to a "hexapole ion bridge." AB/Sciex contends that the hexapole ion bridge is a set of AC-only rods and therefore is an ion guide satisfying the relevant claim limitations of the '736 patent. It also claims that there is a DC voltage applied between the orifice of vacuum chamber 2 and the hexapole ion bridge. Next, ions pass through an orifice into vacuum chamber 3, which contains another hexapole ion bridge. Ions then pass through another orifice into vacuum chamber 4, which contains the aforementioned tandem mass spectrometer, including an AC-DC quadrupole mass filter, an AC-only hexapole collision cell, and another AC-DC quadrupole mass filter. After proceeding through the tandem mass spectrometer section of the Quattro Ultimata, the ions reach a detector.
In July 2001, Micromass replaced the hexapole ion bridges in vacuum chambers 2 and 3 with "ion tunnels." An ion tunnel is a series of ring-shaped electrodes arranged so that ions travel through their empty center. AB/Sciex continues to contend that the post-July 2001 Quattro Ultima infringes the claims of the '736 patent.
II. DISCUSSION
A. Basic Principles of Claim Construction
The construction of the claims in a patent is a matter left to the province of the court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 391, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). In construing a patent's claims, the court must begin with intrinsic evidence, such as the patent itself, the patent specification, and the prosecution history. "It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Among these types of intrinsic evidence, the court "look[s] first to the claim language itself to define the scope of the patented invention." Bell Atlantic Network Servs., Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1267 (Fed.Cir.2001). The court must "give[ ] claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art." Hockerson-Halberstadt, Inc. v. Avia Group Int'l, Inc., 222 F.3d 951, 955 (Fed.Cir.2000). This requirement extends to technical terms, which must be furnished "the meaning *503 that [they] would be given by persons experienced in the field of the invention, unless it is apparent from the patent and the prosecution history that the inventor used the term with a different meaning." Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1578 (Fed.Cir.1996).
After looking to the patent claims themselves, the court considers the remaining intrinsic evidence presented, including the patent's specification and its prosecution history. Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed.Cir.2001). "If the claim language is clear on its face, then [the court's] consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claims is specified." Id. There are typically two such potential deviations. First, a patentee may choose to be his own lexicographer and use a claim term in the specification in a manner other than its plain and ordinary meaning. See Vitronics Corp., 90 F.3d at 1582. Second, the patentee may forfeit a particular construction if he or she "relinquished [a] potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference." Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979 (Fed. Cir.1999).
After consideration of the plain and ordinary meaning of the claim limitations, the court considers the patent specification and prosecution history. Interactive Gift Express, Inc., 256 F.3d at 1332. The patent specification is helpful in construing claims because it is the patentee's written description of the invention. There are two general guidelines for the use of the patent specification: "(a) one may not read a limitation into a claim from the written description, but (b) one may look to the written description to define a term already in a claim limitation, for a claim must be read in view of the specification of which it is a part." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998). The court may also consider the patent's prosecution history. "The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution." Southwall Techs. Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995). If, after consideration of the prosecution history and patent specification, "the meaning of the claim limitations is apparent from the totality of the intrinsic evidence, then the claim has been construed." Interactive Gift Express, Inc., 256 F.3d at 1332.
"Only when the claim language remains genuinely ambiguous after consideration of the intrinsic evidence," may the court consider extrinsic evidence presented by the parties. Bell & Howell Document Mgmt. Prods. Co. v. Altek Sys., 132 F.3d 701, 706 (Fed.Cir.1997). All evidence other than the claims themselves, the patent specification, and prosecution history is extrinsic evidence. There are few limits on the court's use of extrinsic evidence, but it is well-established that "extrinsic evidence may never be used `for the purpose of varying or contradicting the terms in the claims.'" Interactive Gift Express, Inc., 256 F.3d at 1332 (citing Markman, 52 F.3d at 981).
B. "comprising"
AB/Sciex and Micromass dispute the construction of terms in the '736 patent's two independent claims, 1 and 14, for purposes of this Markman proceeding. Claims 1 and 14 both use the term "comprising" in their prefatory statements, before the claims go on to enumerate further claim limitations. AB/Sciex suggests that the court should define "comprising" as "including, but not limited to." Micromass does not disagree with AB/Sciex's proposed *504 construction and admits that the term "comprising" permits the inclusion of additional elements beyond those recited, but argues that the court's construction of the term should not be used by AB/Sciex to evade the primary requirement of the term "comprising" that the invention must include all enumerated claim limitations.
It is well-established that "`comprising' is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim." Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.Cir.1997); see also Phillips Petroleum Co. v. Huntsman Polymers Corp., 157 F.3d 866, 874 (Fed.Cir.1998) ("The use of `comprising' and `which comprises' in the composition and process claims generally would mean that the claims require the presence of [the listed element], but that additional elements or process steps may be present."); Regents of Univ. of California v. Eli Lilly & Co., 119 F.3d 1559, 1572 (Fed.Cir.1997) ("The word `comprising,' as UC argues and as is well-established, permits inclusion of other moieties."); Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1271 (Fed.Cir.1986) ("In every case, the court has held that the open term `comprising' does not exclude additional unrecited elements, or steps ..."). Thus, "comprising" can neither narrow nor broaden the meaning of the claim limitations subsequently recited. It simply requires the presence of the enumerated claim limitations enumerated without prohibiting other unrecited elements, structures, or steps from being present in the invention. Because the court finds that AB/Sciex's construction of "including, but not limited to" is consistent with this well-understood construction of the term, the court hereby adopts that construction.
C. "first" and "second"
Claims 1 and 14 of the '736 patent use "first" or "second" to modify various claim elements, such as "vacuum chamber," "rod set," and "space." The construction of "first" and "second" is important because the tandem mass spectrometer asserted as prior art is alleged to have elements similar to those in the '736 patent, but in a different order of ion travel. The construction is also important because Micromass's Quattro Ultima has an empty vacuum chamber before the hexapole ion bridge chamber alleged by AB/Sciex to be the "first vacuum chamber" in the '736 patent. Thus, the construction of "first" and "second" could dictate which element must come first in the claimed invention and the order in which subsequent elements must follow.
Micromass proposes that the plain meaning of "first" is "preceding all others in time, order, or importance," and the plain meaning of "second" is "next to the first in place or time." Webster's Ninth New Collegiate Dictionary 466, 1060 (1991). In the context of the '736 patent therefore, "first" and "second" sets where each element is located in the path an ion travels in the device. For example, the "first vacuum chamber" must be "the very first vacuum chamber encountered by the ions" and "second vacuum chamber" must be "the very next vacuum chamber encountered by the ions." In this way, Micromass contends "first" and "second" dictate the absolute position of each particular element in the device.
AB/Sciex proposes that "first" and "second" only identify separate, but distinct, elements. That is, the '736 patent discloses two vacuum chambers and the terms "first" and "second" should be understood as separately identifying "a vacuum chamber" and "another distinct vacuum *505 chamber," respectively, without specifying a particular order.
AB/Sciex's position that "first" and "second" do not establish positions in the claimed invention and are mere identifiers is premised on the following three arguments. First, AB/Sciex argues that it is well-established practice among the patentees to use "first" and "second" as identifiers of similar, but distinct, elements. It notes that numerous cases and treatises demonstrate that patent drafters use the terms "first" and "second" to identify separate elements. See, e.g., Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1365-66 (Fed.Cir.2000) (distinguishing "the `second' from the `first baffle means'"); Canon Computer Sys., Inc. v. Nu-Kote Int'l, Inc., 134 F.3d 1085, 1089-90 (Fed. Cir.1998); NeoMagic Corp. v. Trident Microsystems, Inc., 98 F.Supp.2d 538, 544 (D.Del.2000); Robert C. Faber, ed., Landis on Mechanics of Patent Claim Drafting, § 19, at III-16 (4th ed.1999); 2 Irving Kayton et al., Patent Practice § 10.22(f) (6th ed.1998). None of the cases or treatises cited, however, state that "first" and "second" are only identifiers and that they do not also explain the position of elements. Indeed, most of the cases and treatises have no discussion of the meaning of "first" or "second," or the terms thereby modified, at all. Thus, it is not clear that patent drafters using "first" and "second" do not also intend to impart positional significance to those terms.
Second, AB/Sciex notes the claims state, for example, either "first and second vacuum chamber" or "a first rod set" and "a second rod set." The claims do not state "the first rod set" or "the second rod set." AB/Sciex argues that the because the claims do not use the definite article "the," the claims cannot be interpreted to mean "the very first rod set" or "the very next rod set." This argument is unpersuasive, however, because AB/Sciex does not explain how the use of either no article, the indefinite article "a," or the definite article "the" explains how "first" and "second" should be properly construed.
Looking only at these arguments, Micromass's reliance on the plain meaning of "first" and "second" might be persuasive. Were "first" and "second" merely identifiers, as AB/Sciex suggests, the drafters of the '736 patent could just as easily have said, for example, "a vacuum chamber" and "another vacuum chamber," or "vacuum chamber A" and "vacuum chamber B." Either would have identified separate vacuum chambers without also suggesting a positional hierarchy.
But relying on the plain meaning of "first" as "preceding all others in time, order, or importance" and the plain meaning of "second" as "next to the first in place or time" does not necessarily provide a correct construction of the use of those terms in the patent. Nowhere in the claims themselves is it stated that "first" must mean "preceding all other in the path of ion travel," as opposed to, for example, "preceding all others in importance." While the use of "first" and "second" in the patent is consistent with "first" and "second" in the path of a traveling ion, this construction is not required by the claims themselves. Therefore, Micromass's plain meaning argument does not necessarily support its contention that "first" and "second" establish the absolute position of the elements.
Importantly, Micromass's proposed construction of "first" and "second" as setting the absolute position of elements is inconsistent with one of the preferred embodiments in the specification. Were the court to adopt Micromass's position that "first" and "second" must mean "the very first" and "the very second," Figure 12 would be excluded from coverage under the claims. While Figure 1 of the '736 patent shows *506 the more basic embodiment of the invention with only two vacuum chambers (30 and 38), Figure 12 presents a slight variation in which an empty vacuum chamber (70) is added, after the ionization chamber (16') but before the ion guide chamber (30'). If the term "first vacuum chamber" is construed to mean the very first vacuum chamber in the path of ions, the preferred embodiment in Figure 12 would be excluded from coverage by the claims because claim 1 requires "a first rod set in said first vacuum chamber." AB/Sciex correctly notes that a claim construction that excludes a preferred embodiment "is rarely, if ever, correct and would require highly persuasive evidentiary support." Vitronics Corp., 90 F.3d at 1583.
Micromass argues that regardless of whether Figure 12 is covered by the claims, its construction is compelled by the prosecution history. See Elekta Instrument S.A. v. O.U.R. Scientific Int'l, Inc., 214 F.3d 1302, 1308 (Fed.Cir.2000) (preferred embodiment may be excluded from patent's claims when patentee disclaimed the construction that would cover the embodiment). Micromass contends that when MDS distinguished the tandem mass spectrometer references during reexamination, it adopted a construction of "first" and "second" inconsistent with the position it now takes. As noted previously, ions traveling in a tandem mass spectrometer first encounter an AC-DC rod set in a low pressure vacuum chamber, then an AC-only rod set in a high pressure collision cell, and finally another AC-DC rod set in a low pressure vacuum chamber. In distinguishing this structure, MDS stated:
The French application also differs from the system of the invention in other ways. For instance, whereas the first rod set in the invention receives essentially an AC-only voltage, the first section in the French application receives both AC and DC voltages. Whereas the first vacuum chamber of the invention has a product of its pressure with the length of the first rod set equal or greater than 2.25 × 10-2 torr cm, whereby the pressure is at least 1.5 millitorr for a 15 cm rod set, the first section in the French application states that the pressure must be maintained low, typically at 10-5 torr. Further, whereas the second rod set in the invention receives both AC and DC voltages to act as a mass filter, the second section in the French application receives an AC only voltage and is for inducing dissociation of ions. The second chamber of the invention is at very low pressure while the French application states that the pressure in the second section may be varied from 0.1 millitorr to 10 millitorr.
*507 Request for Reexamination at 13-14 (emphasis added); see also id. at 16 (Finnegan abstract), 19 (Finnigan paper), and 21 (Caldecourt article). Because MDS distinguished the tandem references based on which elements were "first" and "second," Micromass argues that the correct meaning for those terms must be "preceding all other elements in the path of ion travel" and "next to the first element in the path of ion travel."
It is apparent from the manner in which MDS uses "first" and "second" in the above passage that it intended to refer to "first" and "second" in the path of ion travel relative to each other. If MDS were only using "first" and "second" as identifiers of separate elements, and not the order of those elements, MDS's distinction would fail because the mere presence of the elements, in any order, would satisfy the claim limitations. Indeed, MDS made clear that it was using "first" and "second" as positions in the order of ion travel in distinguishing the Finnigan abstract, another tandem mass spectrometer reference.
The Finnigan abstract does not disclose or suggest that ions having a relatively low kinetic energy travel through an inlet orifice into a first vacuum chamber having a first rod set for receiving essentially only an AC voltage. The Finnigan abstract further does not disclose or suggest that ions then travel through an interchamber orifice to a second chamber having a second rod set receiving both AC and DC voltages.
Id. at 16 (emphasis added). From these statements, it is clear that MDS is relying on positional differences to distinguish the tandem references, and therefore disclaimed a more broad construction that the terms are mere identifiers of separate elements. In such cases, the Federal Circuit "has endorsed narrowing the interpretation of the claim to be consistent with a narrow claim scope urged by the applicant during the prosecution of the patent." Pall Corp. v. PTI Techs., Inc., 259 F.3d 1383, 1392-93 (Fed.Cir.2001).
Although MDS disclaimed its proposed construction of "first" and "second" as mere identifiers, this "disclaimer" does not compel the court's adoption of Micromass's "absolute position" construction. AB/ Sciex, in explaining its comments from the reexamination, set forth an alternative construction that "first" and "second" only define where in the invention the element is located relative to the other listed element. That is, regardless of how many vacuum chambers and rod sets there might be in the structure and where they are, the invention only requires that "first" come before "second." Or, put simply, the ion guide elements must precede the mass filter elements. MDS did not disclaim this construction of "first" and "second" on reexamination and, in fact, its comments were consistent with this construction.
This "relative positioning" construction of "first" and "second" is persuasive because it would cover Figure 12. The existence of an empty vacuum chamber prior to the vacuum chamber containing the ion guide is immaterial to whether the "first vacuum chamber" claimed in the invention precedes the "second vacuum chamber" claimed in the invention. Thus, the court will construe "first" to mean "an element" and "second" to mean "an element coming after, in the path of ion travel, the first such element." This construction sets a relative relationship between the "first vacuum chamber" and "second vacuum chamber" consistent with the plain meaning of those terms and the reexamination history. The court does not believe that this construction reads the word "first" out of the claims. Rather, the court's constructions of "first" and "second" together establish the relative positions of those *508 elements listed in the claims without regard to the existence or placement of similar elements not mentioned in the claims.
Therefore, the court finds that the construction of the terms "first" and "second" that best comports with the plain meaning of those terms, the patent's specification, and the reexamination history, is that they define the position, in the path of ion travel, of the elements in the invention relative to the similar elements also mentioned in the claims. Thus, "first" is construed to mean "an element." "Second" is construed to mean "an element coming after, in the path of ion travel, the first such element."
1. "first vacuum chamber" and "second vacuum chamber"
Consistent with the court's conclusion, it will further define the specific applications of "first" and "second" in the various elements. The court construes "first vacuum chamber" as "a vacuum chamber." The court construes "second vacuum chamber" as "a vacuum chamber coming after, in the path of ion travel, the first vacuum chamber." The parties agree that the term "vacuum chamber" means a chamber held at a pressure lower than atmospheric pressure.
2. "first rod set" and "second rod set"
The court construes "first rod set" as "a rod set." Similarly, the court construes "second rod set" as "a rod set coming after, in the path of ion travel, the first rod set."
Other than the adjective "first," Micromass raises two additional limitations that it argues are in the term "rod set." First, Micromass argues that "rod set" must be comprised of just that rods and that other shapes of electrodes, such as the rings of the latest Quattro Ultima design, cannot infringe the claims. It maintains that MDS, in distinguishing the ion trap references that use AC-only voltage during reexamination, disclaimed that the term "rod set" permits anything other than "rods." AB/Sciex agrees, but believes such a construction by the court to be unnecessary because "a rod is a rod." The court agrees and believes the proper construction of rod to be self-evident.
Micromass also contends that the "rod set" must be arranged as a quadrupole. It notes that the patent specification repeatedly refers to the arrangement of rods as a quadrupole in the preferred embodiment. See '736 Patent, Col. 4, ln. 21-23. Nowhere, however, do the claims of the '736 patent use the word quadrupole. Instead, claim 1 only requires "a plurality of elongated parallel rod means spaced laterally apart a short distance from each other." Claim 14 has a similar requirement. It is well-established that limitations not existing in the claims cannot be imported from specification. See Dayco Prods., Inc. v. Total Containment, Inc., 258 F.3d 1317, 1326 (Fed.Cir.2001) ("although we construe claims in light of the teaching of the specification, we do not treat characteristics of a preferred embodiment as claim limitations"). Thus, the court finds that the term "rod set" in the claims of the '736 patent require only a plurality, meaning two or more, of rods in each rod set and do not require a quadrupole.
3. "first space" and "second space"
Claim 1(c) of the '736 patent discusses a space within each vacuum chamber and rod set such that "each rod set comprising a plurality of elongated parallel rod means spaced laterally apart a short distance from each other to define an elongated space therebetween extending longitudinally through such rod set." The preamble of claim 14 is similar. The court construes "first space" in both claims as "a *509 space." Similarly, the court construes "second space" in both claims as "a space coming after, in the path of ion travel, the first space."
D. "inlet orifice"
Claim 1(a) of the '736 patent requires "first and second vacuum chambers separated by a wall, said first vacuum chamber having an inlet orifice therein." Claim 14(b) requires the "directing said ions through an inlet orifice in an inlet wall into said first space." Micromass contends that because the claims require that the inlet orifice must be in the first vacuum chamber, the inlet orifice must be the beginning of that part of the mass spectrometer held below atmospheric pressure. Put differently, Micromass is relying on its interpretation of "first vacuum chamber" as "the vacuum chamber proceeding all other vacuum chambers," and arguing that because the inlet orifice must be the inlet to the first vacuum chamber and because the first vacuum chamber must be the first chamber held below atmospheric pressure, the inlet orifice must be the inlet to the first chamber held below atmospheric pressure.
AB/Sciex contends that the term "inlet orifice" refers to "an orifice that provides an inlet into the claimed first vacuum chamber for the passage of ions and neutral gas molecules."
Micromass's proposed construction is unconvincing because it is premised upon its construction of "first vacuum chamber," which has been rejected by the court. Essentially, Micromass seeks a definition of "inlet orifice" such that if an empty vacuum chamber were to precede the ion guide (as in the Quattro Ultima), the "first vacuum chamber" could not possess both an inlet orifice and a rod set, as required by the claims of the patent. But the court has construed "first vacuum chamber" to mean "a vacuum chamber." Therefore, the ion guide vacuum chamber can be the "first vacuum chamber" and any preceding vacuum chamber does not alter this result. Thus, the "inlet orifice" to the "first vacuum chamber" need not be the entrance to the first chamber held at less than atmospheric pressure. Instead, the court will adopt AB/Sciex's proposed construction, which is consistent with the court's earlier construction of "first" and "second."
E. "separated by a wall" and "inter-chamber orifice"
Claim 1(a) describes "first and second vacuum chambers separated by a wall." Claim 1(d) then requires "an interchamber orifice located in said wall and aligned with said first and second spaces so that ions may travel through." Similarly, the preamble in claim 14 describes "first and second spaces ... separated by an interchamber orifice so that an ion may travel through said first space, said interchamber orifice and said second space ..." Thus, while claim 14 does not identify the wall discussed in claim 1, it does identify the interchamber orifice separating the first and second spaces.
Micromass's proposes a construction of "separated by a wall" and "interchamber orifice" that would require the wall and interchamber orifice to join or link the two vacuum chambers and spaces. In support of this construction, Micromass points to Figures 1 and 12 and notes that in both there is only a solitary wall and interchamber orifice dividing the two vacuum chambers and spaces. Micromass also notes that the description of Figure 1, which states, in part, "[t]he vacuum chamber 30 is connected by an interchamber orifice 34 in a separator plate 36 to a second vacuum chamber 38 pumped by a vacuum pump 39." Noting the specification's use of the term "connected" to describe the interchamber *510 orifice, Micromass maintains that wall and interchamber orifice must "join or link together" the two structures.
AB/Sciex contends that "separated by a wall" should be construed to mean only that "there is at least a wall between the first and second vacuum chambers" and that "interchamber orifice" should be construed to mean "an orifice in a wall that is between the first and second vacuum chambers." It criticizes Micromass's proposed construction because by requiring that the wall and interchamber orifice to join or link the two vacuum chambers or spaces, Micromass would be creating a requirement that no other structure, such as the multiple walls between vacuum chambers in the Quattro Ultima, be between the "first vacuum chamber" and the "second vacuum chamber."
AB/Sciex's proposed construction is well-founded. Claim 1 requires only that the first and second vacuum chambers be separated by a wall with an interchamber orifice. Because the claim uses the term "comprising," other structures may be present between the two vacuum chambers at well. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed.Cir.1997) ("`Comprising' is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim."). Similarly, claim 14 requires only that an interchamber orifice separate the first and second spaces and it does not preclude other structures separating those spaces. Micromass's proposed construction ignores this ordinary reading of the claims and relies on the embodiments shown in the specification. The court will not import limitations existing only in the patent specification into the claims themselves. See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998) ("limitations from the specification are not to be read into the claims"). Thus, the court will adopt AB/Sciex's proposed construction of "interchamber orifice" and "separated by a wall."
F. "so that ions may travel through said inlet orifice, through said first space, through said interchamber orifice, and through said second space" and "so that an ion may travel through said first space, said interchamber orifice and said second space"
Claim 1(d) contains the phrase "so that ions may travel through said inlet orifice, through said first space, through said interchamber orifice, and through said second space." Claim 14 similarly traces the path of the ions in its preamble. It states "so that an ion may travel through said first space, said interchamber orifice and said second space." Claim 14(b) similarly recites "directing said ions through an inlet orifice in an inlet wall into said first space, first through said first space, said interchamber orifice and then through said second space ...."
AB/Sciex seeks a construction of these phrases that would not exclude the addition of other unlisted structures through which the ions travel. It notes that the preambles of both claim 1 and 14 include the term "comprising," thereby indicating the necessity of the listed elements but not the exclusion of others. See Genentech, Inc., 112 F.3d at 501. Micromass contends otherwise, but relies on the meaning of "aligned" of "end-to-end" in the phrases immediately prior to those recited above in support of its argument. Thus, the court finds that plain meaning of the phrases recited above is that the ions must pass through each of the recited elements, but may also pass through additional structures.
*511 G. "located end to end" and "aligned"
Claim 1(c) requires that "said first rod set being located end to end with said second rod set so that said first and second spaces are aligned." Claim 1(d) also uses the term "aligned" and requires "an interchamber orifice ... aligned with said first and second spaces." Claim 14's preamble similarly requires "first and second rod sets each comprising a plurality of rod means and defining longitudinally extending first and second spaces respectively located end-to-end with each other ...." The parties agree that because the first and second spaces are defined by area of the first and second rod sets, respectively, the terms "located end to end" and "aligned," as used in claim 1, are related. The court will therefore address them concurrently.
Micromass's proposed construction of "located end to end"[1] is "characterized by having the end of one object placed against the end of another." This construction of "located end to end" is described by Micromass as consistent with the plain meaning of "end to end." Its proposed construction of "aligned" is similar. Micromass argues that "aligned" must mean that the end of the first rod set or space is placed at or near the end of the second rod set or space so that the two abut. According to Micromass, this construction of "aligned" is required by the prosecution history of amended claims 25 and 26. Given these constructions, it is Micromass's argument that claim 1(c) and 14 would not be infringed if another structure separated the rod sets or spaces because the additional structure would prevent the rod sets or spaces from being "end to end" or "aligned."
AB/Sciex contends that "located end to end" and "aligned" do not prohibit the use of other intervening structures. The proper construction of "located end to end," according to AB/Sciex, is defined in functional terms by the claim itself as "so that first and second spaces are aligned." This is consistent, AB/Sciex explains, with the claim's recitation of the path of ions "through said inlet orifice, through said first space, through said interchamber orifice and through said second space." '736 Patent, Claim 1(d). AB/Sciex goes on to define "aligned" as requiring only that ions travel on the specified path.
AB/Sciex argues that Micromass's plain meaning arguments have no support in the patent itself. It contends that nowhere does the patent specification require that the two spaces or rod sets be adjoining or near one another, only that they be near enough to accomplish the patent's function of permitting an ion stream to proceed from the first rod set and space to the second rod set and space. Furthermore, AB/Sciex notes that the patent claims themselves require a wall and interchamber orifice between the rod sets and spaces, thereby proving that they need not abut.
As Micromass asserts, "end to end" is defined as "characterized by having the end of one object placed against the end of another." Webster's Third New International Dictionary, Unabridged 750 (1986). AB/Sciex does not propose an alternative construction, but rather argues that "end to end" only means "that the first and second spaces are aligned." Were the court merely evaluating which of these two constructions is most likely to be the plain meaning of "end to end," it would choose Micromass's proposed construction. But "end to end" is used in the context of the overall structure of claim 1. Thus, AB/ Sciex responds to this "plain meaning" argument *512 by noting that claim 1 requires a wall (36) that divides the two vacuum chambers (30 and 38), thereby preventing the rod sets (32 and 40) from being strictly "end to end," as Micromass suggests. This argument is a convincing rejoinder to Micromass's proposed construction. If the rod sets are separated by a wall, as required by claim 1(a), the end of the first rod set cannot be placed against the end of the second rod set. Similarly, in claim 14, the spaces described as "end to end" terminate at the end of each rod and are then separated from each other by an interchamber orifice. Thus, the two spaces cannot abut ends.
In further support of its argument that "end to end" means only that the first and second spaces are aligned and not adjacent, AB/Sciex points to Figures 1 and 12 in the patent specification, which not only show a wall (36) with interchamber orifice between the two rod sets (32 and 40), but also an undefined amount of space. Moreover, the initial description of the structure of the invention states that there must be "a first rod set in said first vacuum chamber extending along at least a substantial portion of the length of said first vacuum chamber," thereby explaining that the inventors did not believe the first rod set (32) was required to extend to the end of the first vacuum chamber (30). '736 Patent, Col. 1, lnn 63-65. AB/Sciex argues that the specification therefore contradicts Micromass's construction that the rod sets in claim 1 must be end to end.
Turning for a moment to the meaning of "aligned," it is readily apparent that construing the meaning of this term is not as difficult as "end to end." "Align" is defined as "to bring into line or alignment," or "to be in or come into precise adjustment or correct relative position." Webster's Ninth New Collegiate Dictionary 70 (1991). Nothing in the claims of the patent or the specification indicates that the claims use "aligned" any differently than its traditional definition.
Micromass's position is thus a tenuous one. While it argues that "end to end" must mean that the ends of the elements are abutting, that construction of the term would seem to conflict with both the other terms of the claim and the patent specification. And while it asserts that "aligned" must mean that the end of the first rod set or space are placed at or near the end of the second rod set or space, the plain and ordinary meaning of "aligned" would appear only to require the elements be in precise adjustment or correct relative position.
Lacking other support, Micromass argues that the prosecution history of claims 25 and 26 support its proposed construction of "end to end" and "aligned." In rejecting claim 25, which added to claim 1 *513 a limitation that the longitudinal axes created by the rod sets intersect, the PTO examiner took the position that "if the two rod sets are aligned, they are by definition parallel." The PTO examiner used the same reasoning to reject claim 26, which added a limitation that the longitudinal axes created by the rod sets be parallel. In distinguishing the limitations of claim 25 and 26 from the requirements of claim 1, MDS argued that "aligned" meant only that the elements "be in or come into precise adjustment or correct relative position." (citing Webster's Ninth New Collegiate Dictionary). Response After Final Office Action, 2. Therefore, AB/Sciex argued, the longitudinal axes of the rod sets (32 and 40) and the spaces they define could be aligned and at the same time either be non-parallel and intersect (claim 25) or be parallel (26). Micromass focuses on a statement made by MDS while making this argument. MDS stated, "[t]he first and second spaces, for instance, may be `aligned' when an end of the first space terminates near an end of the second space whereby ions can travel through the first rod set and into the second rod set." Id. at 3 (emphasis added). MDS also stated, "the first space could be at an angle relative to the second space and the two spaces could be aligned by having the ends precisely located relative to each other so that their ends abut." Id. at 4 (emphasis added).
Micromass argues that because MDS made these statements in arguing the definition of "aligned," and because "aligned" and "end to end" are related terms, both claims should be construed to require that the rods or spaces be near or abut. This argument is unpersuasive. First, in explaining the meaning of "aligned," AB/Sciex was not commenting on the meaning of "end to end," and thus it cannot be said that the prosecution history supports Micromass's proposed construction of that term. Second and more important, MDS did not disclaim any particular construction of "aligned" by making these statements. Indeed, it introduced each of the sentences that Micromass relies upon with language such as "for instance, may be ..." and "could be." MDS was not describing the meaning of "aligned," but instead was describing how its invention might be structured if it were to use non-parallel rod sets. MDS never asserted that "abutting" rod sets and spaces was how the claims had to be construed. The court therefore does not find MDS disclaimed any particular construction of "end to end" or "aligned" in its prosecution history.
The court will therefore adopt AB/ Sciex's proposed construction of "aligned." Micromass's proposed construction of the term lacks support in the claims themselves, the specification, or the prosecution history. In contrast, AB/Sciex's proposed construction, also explained during the prosecution of dependent claims 25 and 26, is consistent with the plain meaning of that term "being in or coming into precise adjustment or correct relative position."
The proper construction of "end to end" presents a more difficult question because its dictionary definition is contrary to the other claim limitations and the specification, which both show structures between the elements described as "end to end." But the correct construction of "end to end" is revealed by the claims, which require only that ions move "through" the elongated spaces formed by the rods. Indeed, the claims describe the transmission of ions from the inlet orifice, through the first space created by the first rod set, through the inlet orifice, and through the second space created by the second rod set. Thus, the claims adopt a functional description of the path of the ions that takes the ions longitudinally from one elongated space and through the next. *514 Claims 1 and 14 do not require that the axes of the rod sets be parallel or on the same axis, only that the ions travel in this manner successfully. The prosecution history of dependant claim 25 even suggests that the longitudinal axes of the two rod sets in claim 1 might be both non-parallel and intersecting and still accomplish this function. Because functionality, and not any particular angle or distance is required by the claims, the court will therefore adopt AB/Sciex's proposed construction of "end to end" that the rod set (Claim 1) or space (claim 14) must be arranged in a manner that ions may be successfully transmitted from the end of the first rod set or space to the end of the second rod set or space.
H. "ions of a trace substance to be analyzed"
Claim 1(b) requires a "means for generating ions of a trace substance to be analyzed." Claim 14(a) requires "producing ... ions of trace substance to be analyzed." The parties disagree on the proper construction of "ions of a trace substance to be analyzed." Micromass proposes that the phrase be construed so that "to be analyzed" modifies "ions." This construction would require that the claimed invention generate or produce the same ions it will analyze.
AB/Sciex argues that the proper construction of the phrase is that "to be analyzed" modifies its direct predecessor "trace substance." That is, the claimed invention need only analyze the trace substance by generating or producing ions of it. It contends that Micromass's proposed construction is motivated by an attempt to use the Quattro Ultima's collision cell to avoid infringement. Because the collision cell dissociates ions into daughter ions, it is suggested by AB/Sciex that the Quattro Ultima does not analyze the same ions it generated or produced.
The court agrees with AB/Sciex that the phrase "to be analyzed" modifies the term "trace substance" and not "ions." This is the most plain and ordinary meaning of the phrase because "to be analyzed" directly follows "trace substance," and not "ions." Moreover, were the court to look to other intrinsic evidence, AB/Sciex's construction is consistent with the patent specification. The first two sentences in the section entitled "Background of the Invention" state: "Mass spectrometry is commonly used to analyze trace substances. In such analysis, firstly ions are produced from the trace substance to be analyzed." '736 Patent at Col. 1, ln. 15-17 (emphasis added). While the analysis of ions is a necessary component of analyzing the trace substance, the claims of the '736 patent do not require that the ions generated or produced by the invention be what is finally analyzed. Rather, claims 1(b) and 14(a) do require that the trace substance be analyzed.
I. Does claim 1(d) or claim 14(a) require that the invention not dissociate ions?
Along the same lines, Micromass argues that claims 1(d) and 14(a), taken as a whole, require that: (1) "the device or method practicing the invention not contain a collision cell," (2) "the device or method practicing the invention not intentionally generate any daughter ions in the first space," and (3) "the device or method practicing the invention operate such that ions generated in the source travel intact (i.e., without dissociation) to the detector." Again, this claim construction issue is relevant to whether the Quattro Ultima, with its collision cell, can infringe.
With respect to claim 1(d), Micromass notes that it describes how "ions travel through said inlet orifice, through said first space, through said interchamber orifice, *515 and through said second space." Those ions, Micromass asserts, must be the same as those discussed in claim 1(b), which discusses the "means for generating ions of a trace substance ... and for directing said ions through said inlet orifice into said first vacuum chamber." Thus, Micromass concludes that claim 1(d) describes a particular passageway of ion travel and because no fragmentation of ions is taught and no collision cell is described as part of that path, any device that fragments ions or contains a collision cell cannot infringe. It finds support for this construction in the prosecution history; particularly, the extensive comments made by MDS to distinguish the tandem mass spectrometer's use of a collision cell to fragment ions.
The court disagrees with Micromass's proposed construction. As noted previously, claim 1(d)'s discussion of the pathway of ions does not preclude the presence of other structures because claim 1 uses the term "comprising" to introduce elements. See supra at 504. Moreover, nothing in claim 1(d) mentions a collision cell or ion dissociation. Thus, there is no basis for incorporating the limitations Micromass suggests into that claim. Furthermore, the prosecution history is unhelpful to Micromass on this point. Micromass has not shown that AB/ Sciex is proposing a construction that was disclaimed by MDS during the reexamination. See Southwall Techs., Inc., 54 F.3d at 1576 ("The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution."). During re-examination, MDS distinguished the proposed invention from a collision cell. It did not state that the claims require that no collision cell exist in a mass spectrometer that uses the claimed invention. Again, the claim's use of the term "comprising" indicates that other structures might exist in addition to that which was claimed.
The claim limitation in 14(b), however, presents a different situation. It uses a phrase in describing the pathway of ions that claim 1 lacks. After remarking in claim 14(a) that the ions are produced outside the first chamber, claim 14(b) states "directing said ions through an inlet orifice ... and then through said second space, and then detecting the ions which have passed through said second space to analyze said substance." (emphasis added). This last phrase requires that the ions produced outside the first chamber later be detected for analyzing the substance. This claim language appears to support only the last of Micromass's three proposed constructions, that "the device or method practicing the invention operate such that ions generated in the source travel intact (i.e., without dissociation) to the detector." But to say that the claim requires that ions travel without any dissociation, however, is to construe claim 14(b) too broadly. Claim 14(b) requires only that ions produced outside the first chamber and travel through the first and second spaces also be detected in order to analyze the trace substance. The claim says nothing about dissociation, only that the ions travel the specific path.
In summary, the court does not construe claim 1(d)'s recitation of the path of ions "through said inlet orifice, through said first space, through said interchamber orifice, and through said second space" to include any of the three limitations suggested by Micromass. With respect to claim 14(b),however, the clause "directing said ions through an inlet orifice ... and then through said second space and then detecting the ions which have passed through said second space to analyze said substance" requires that ions produced outside the first chamber and that travel *516 through the first and second spaces also be detected in order to analyze the substance.
J. "means ... for directing said ions through said inlet orifice into said first vacuum chamber"
Claim 1(b) states: "means ... for directing said ions through said inlet orifice into said first vacuum chamber." This is a means-plus-function limitation governed by paragraph 6 of 35 U.S.C. § 112. Section 112 requires that when, "[a]n element in a claim for a combination [is] expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof," the court shall construe that claim "to cover the corresponding structure, material, or acts described in the specification and equivalents thereof." Id. Accordingly, means-plus-function limitations are to be construed in two steps. The court must first identify the function claimed and then identify the corresponding structure, material, or acts described in the patent specification. See Lockheed Martin Corp. v. Space Systems/Loral Inc., 249 F.3d 1314, 1324 (Fed.Cir.2001). Neither party in this case disputes that the function claimed in claim 1(b) is "directing said ions through said inlet orifice into said first vacuum chamber." Nor do the parties disagree that one of the structures identified in the specification to accomplish this function is the DC potential voltage applied between the inlet orifice (26) and the first rod set (32) in the first vacuum chamber (30). The '736 patent specification recites, in referring to Figure 1, that "[i]ons produced in the ionization chamber 16 are drifted by appropriate DC potentials on plates 22, 28 and on the AC-only rod set 32 through opening 20 and orifice 26," into the first vacuum chamber. '736 Patent, Col 4, ln. 38-41.
The parties disagree, however, whether the patent specification also identifies, with sufficient particularity, the differential in pressure on either side of the inlet orifice as another structure for accomplishing the function recited in claim 1(b). To evaluate this claim, the court must read the specification "as a whole to determine the structure capable of performing the claimed function." Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1379 (Fed.Cir.2001). Read as a whole, the specification contains many references to the pressure differential on opposite sides of the inlet orifice. It notes that the ionization chamber (16) "is maintained at approximately atmospheric pressure." '736 Patent, Col. 4, ln. 13-14. Next to the ionization chamber is the curtain gas chamber (24), into which an inert gas, such as nitrogen, argon, or carbon dioxide is supplied, which has the effect of "preventing air and contaminants in the ionization chamber from entering the vacuum system." *517 Id. at ln. 29-36. Furthermore, the specification describes how "[t]he curtain gas flows through orifice 26 [the inlet orifice] into the first vacuum chamber 20." Id. at ln. 32-33. The comparatively lower pressure achieved by the vacuum pump (31) in the first vacuum chamber (30) is discussed ubiquitously in the patent and is recited at various levels significantly less than atmospheric pressure, including 2.4, 5.6, and 8.6 millitorr. See, e.g., id. at Col 8, ln. 45. Thus, it is clear from the patent specification that a pressure differential exists between curtain gas chamber (24) and the first vacuum chamber (30) and that this pressure differential causes the curtain gas to flow through the orifice (26). The question presented is whether this description of the structure satisfies the requirements of § 112.
Micromass argues that while the specification does disclose the structure, the patent nowhere relates this structure to the function recited in claim 1(b). It contends that the definiteness standard of § 112 requires that the specification expressly link a structure to the function recited in the claim. "This duty to link or associate structure to function is the quid pro quo for the convenience of employing § 112." B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed.Cir.1997) (emphasis in original). Micromass concludes that the pressure differential cannot be a corresponding structure for the means-plus-function limitation in claim 1(b) because the pressure differential, while noted in the specification, is not clearly linked or associated with the function of ion transmittal through the inlet orifice. See Budde, 250 F.3d at 1377 (noting the "duty to clearly link or associate structure to the claimed function").
Thus, Micromass does not present a position on claim construction per se, but seeks to argue claim 1(b) reveals no clearly linked structure and is therefore indefinite and cannot be construed. Because the structure is evident from the specification and Micromass's only argument is that it is not clearly linked to the function, the court will assume, for purposes of claim construction, that the claims satisfy § 112.
AB/Sciex responds that while there is no express statement in the specification by which the pressure differential is identified as accomplishing the movement of ions into the first vacuum chamber, no such express statement is required. Instead, the court must determine whether one skilled in the art would have understood that the pressure differential disclosed was a "structure capable of performing the function recited in the claim limitation." Id. at 1382. "Whether or not the specification adequately sets forth structure corresponding to the claimed function necessitates consideration of that disclosure from the viewpoint of one skilled in the art." Id. at 1376. AB/Sciex notes that its expert, Dr. Christie G. Enke, has declared that it is his "opinion that the '736 patent shows that pressure differentials created by pumps are used to direct the flow of ions and neutral molecules from an area of relatively high pressure to an area of low pressure." Expert Report of Dr. Christie G. Enke, at 16.
Micromass has not presented evidence that Dr. Enke's opinion on this matter is incorrect and that, in truth, one skilled in the art would not have known that differences in pressure would transmit ions. Rather, Micromass makes two arguments. First, it takes the position that "[b]ecause the specification does not link differential pumping with the function of directing ions through the inlet orifice let alone link them `clearly' as required by Federal Circuit precedent it is not `means' within the scope of Claim Element 1(b) regardless of whether it is well-known to one skilled in the art." Defendant's Answering Br. at *518 28. That is, Micromass argues that if there is no express link between the structure of the invention and the function identified, regardless of whether this link would have been evident from the specification to one skilled in the art, the structure does not satisfy § 112. None of the precedent cited by Micromass supports this position. See Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1571-72 (Fed.Cir.1997); In re Donaldson Co., 16 F.3d 1189, 1195 (Fed.Cir.1994). Instead, the requirement that the court view the specification from the perspective of one skilled in the art is clearly established. See Budde, 250 F.3d at 1376.
Second, Micromass asserts that it is inappropriate to resort to Dr. Enke's report because it is extrinsic evidence and no party has indicated that claim 1(b) suffers from an ambiguity. This is incorrect. Because the court must furnish technical terms in the patent the meaning given by those skilled in the art, see Hoechst Celanese Corp., 78 F.3d at 1578, it cannot ignore assertions of what would be known to one skilled in the field of the invention.
Thus, the court finds that one of the functions disclosed in the means-plus-function limitation in claim 1(b) is "directing said ions through said inlet orifice into said first vacuum chamber" and that the specification contains two structures that accomplish the described function: (1) the DC potential voltage between the inlet orifice and the AC-only rods; and (2) the pressure differential between the chamber preceding the first vacuum chamber and the first vacuum chamber.
K. "guide ions through"
Claim 1(e), which describes the working of the invention's ion guide, states: "means for applying essentially an AC-only voltage between the rod means of said first rod set so that said first rod set may guide ions through said first space." Claim 14(c) similarly states: "placing an essentially AC-only RF voltage between the rod means of said first set so that said first rod set acts to guide ions therethrough." RF stands for "radio frequency and is another way of describing an alternating current." The parties dispute the proper construction of "guide ions through."[2]
Micromass contends that the ordinary meaning of "through" is "a function word that indicate[s] movement into at one side or point and out at another and especially the opposite side of" or "to indicate passage from one end or boundary to another." Thus, it concludes that "guide ions through" requires that the first rod set (1) guide ions all the way from the beginning to the end of the first space, (2) without ever trapping or storing them for a period of time. Micromass argues that this construction is supported by an argument MDS made to distinguish its claimed invention from one of the ion trap references it presented on reexamination.
AB/Sciex contends that "guide ions through" means only what it says ions must be guided through the first space by the ion guide. It argues that Micromass's construction creates two claim limitations unsupported by the claims themselves. Those two limitations are (1) the requirement that all ions enter and exit the ion guide, and (2) that the ions must be guided without ever trapping or storing them for any period of time. AB/Sciex argues that the first of these requirements is rebutted by the specification, which notes that the maximum percentage of ions transmitted through the ion guide using various orifice sizes and pressures was 90%. See '736 *519 Patent at Col. 7, ln. 10-66. The second of these requirements, AB/Sciex argues, has no basis in the plain meaning of the claims and is not required by statements MDS made during the prosecution history.
Reading the claims alone, it is apparent that the term "guide ions through" does not require the successful transmission of all ions or limit the amount of time permitted to do so. It is uncontested that "through" is defined as "indicate[s] movement into at one side or point and out at another and esp[ecially] the opposite side of." Webster's Ninth New Collegiate Dictionary 1230 (1991). No part of this definition, however, requires the transmission of all ions or sets any restriction on how long the movement of ions can take. Indeed, the only limitation on the number of ions guided through the ion guide is the fact that "ions" is plural and therefore there must be two or more.
Lacking textual support for its two limitations in the claims themselves, Micromass points to statements made by MDS in distinguishing the ion trap references during reexamination. While discussing the Schaaf article, MDS described the working of an ion trap by stating, "[w]ith an ion trap, ions of a selected range of mass to charge ratios are trapped or stored for a period of time (which can be quite lengthy) due to electric fields generated with electrodes." Request for Reexamination at 6. In contrast, MDS argued that the claimed invention had an entirely different structure than an ion trap and stated that the "first rod set receives essentially only an AC voltage so that ions are guided through the first vacuum chamber without being trapped there." Id. at 7. Micromass argues that this statement is an admission that the ion guide does not trap ions for any length of time and that this admission must narrow the court's construction of "guide ions through." Understood in context, the distinction drawn by MDS was not that ion guides do not trap ions for any length of time and ion traps do. Rather, MDS argued that ion traps are designed to trap the ions of interest for further analysis, while the ion guide is designed to transmit the ions of interest for further analysis. Moreover, MDS did not state that all ions are guided through the first vacuum chamber without being trapped there, it only said that ions are guided without being trapped in the first vacuum chamber. Thus, it is inappropriate to find in this statement an admission that the claim's limitation that the invention "guide[s] ions through" requires that all ions be guided through. The court finds that MDS did not disclaim a broad interpretation of "guide ions through" by distinguishing the ion trap reference in the Schaaf article.
The court will therefore adopt AB/ Sciex's proposed construction that the term "guide ions through" means simply that ions must be guided through the first space by the AC-only voltage between the rod means. The court will not adopt a more narrow construction of the phrase to require either that all ions be transmitted through the ion guide or that the ion guide not trap or hold any ions for any length of time.
L. "means for flowing gas" and "admitting a gas into said first chamber with said ions"
Claim 1(g) requires "means for flowing gas through said inlet orifice into said first space." This claim is means-plus-function limitation governed by paragraph 6 of 35 U.S.C. § 112. Claim 14(e) requires "admitting a gas into said first chamber with said ions."
The function disclosed in claim 1(g) is apparent and agreed by both parties. Claim 1(g)'s function is to "flow[ ] gas through said inlet orifice into said first *520 space." Where the parties depart is in construing the corresponding structure. Micromass describes the corresponding structure as the curtain gas source (42) that introduces an inert curtain gas into a chamber (24), and which then flows into both the first vacuum chamber (30) and into the ionization chamber (16). See '736 Patent, Col. 4, ln. 29-36. Therefore, Micromass argues that the "means for flowing gas" is properly construed to mean the introduction by a separate duct of an inert gas that flows both into the ionization chamber and the first vacuum chamber.
AB/Sciex disagrees. It focuses on the function to flow gas through said inlet orifice and into said first space and argues that structure of the invention that accomplishes this function is not the curtain gas source itself, but the difference in pressure between the chamber (24) in which the gas is introduced and the first vacuum chamber (30). This conclusion is supported by the specification, AB/Sciex argues. The specification details that the "curtain gas chamber 24 is connected by an orifice 26 in orifice plate 28 to a first vacuum chamber 30 pumped by a vacuum pump 31." Id. at Col. 4, ln. 19-21. It goes on to state that the "curtain gas flows through orifice 26 into the first vacuum chamber 30." Id. at Col. 4, ln. 32-33. Therefore, AB/Sciex argues that the corresponding structure is not the curtain gas source and chamber, but the differential pressure.
The court concludes that AB/ Sciex's position is correct. Claim 1(g)'s function "flowing gas through said inlet orifice into said first space" is performed in the specification by the existence of gas in a chamber, separated from the first vacuum chamber by the inlet orifice, at a higher pressure than that in the first vacuum chamber. The court will therefore construe the structure of claim 1(g) in this manner.
Claim 14(e) is not a means-plus-function limitation and therefore does not require construction of both a function and corresponding structure detailed in the specification. Its meaning is clear from the face of the text. Claim 14(e) requires "admitting a gas into said first chamber with said ions."
M. "the pressure in said second chamber being a very low pressure" and "the pressure in said second chamber at a substantially lower pressure than that of the said first chamber"
Claim 1(i) requires that "the pressure in said second chamber being a very low pressure for operation of said second rod set as a mass filter." Claim 14(g) describes "pumping gas from said second chamber to maintain the pressure in said second chamber at a substantially lower pressure than that of said first chamber, for effective mass filter operation of said second rod set."
Micromass seeks a construction of "a very low pressure" and "substantially lower pressure than that of said first chamber" that is consistent with the specification. The patent specification states that "it is advantageous that the pressure in vacuum chamber 38 containing the mass spectrometer rods 40 be very low, e.g. between 2 × 10-5 and 1 × 10-6 torr or less." '736 Patent, Col. 4, ln. 53-56. Therefore, Micromass posits that the pressure in the second vacuum chamber must be 2 × 10-5 torr or lower.
Micromass's position is unwarranted by the claims. Claim 1(i) and claim 14(g) do not require any particular maximum pressure, but only that the pressure be "a very low pressure" (Claim 1(i)) or "substantially lower than that of said first chamber" (Claim 14(g)). No more or less is required. See Specialty Composites v. *521 Cabot Corp., 845 F.2d 981, 987 (Fed.Cir. 1988) ("particular embodiments appearing in the specification will not generally be read into the claims"). Thus, the court believes the claims require no further construction.
N. "equal to or greater than 2.25 × 10-2 torr cm but the pressure ... being below that pressure at which electrical breakdown would occur between the rod means of said first rod set" and "at or greater than 2.25 × 10-2 torr cm but maintaining the pressure in said first chamber below that pressure at which electrical breakdown would occur between the rods of said first rod set"
Claim 1(j) requires that the product of the pressure and the length of the rods in the first vacuum chamber be "equal to or greater than 2.25 × 10-2 torr cm but the pressure ... being below that pressure at which an electrical breakdown will occur between the rod means of said first set." Claim 14(f) requires that the vacuum pump (31) of the first chamber "maintain the product of the pressure in said first chamber times the length of said first rod set at or great than 2.25 × 10-2 torr cm but maintaining the pressure ... below that pressure at which an electrical breakdown would occur between the rods of the first set."
AB/Sciex's proposed construction of these limitations is that "the pressure in the first vacuum chamber is at level such that the product of the pressure and the rod length (`P × L') is equal to or greater than 2.2.5 × 10-2 torr cm, but the pressure is not so high that electrical breakdown will occur between the rods." It argues that this construction is dictated by the terms of the claim and no other parameter, such as a quantified upper limit of pressure, is contained within the limitation.
Micromass's proposes a construction of the claims that would impart several additional limitations on the claim. These will be addressed in turn.
1. location of pressure measurement
Micromass argues the construction should require that the pressure measurement, for purposes of the P × L calculation, must be taken between the rods of the first rod set, rather than anywhere else in the first vacuum chamber. It notes that the specification states, "[i]t is also noted that the number of collisions which an ion has while travelling through the AC-only rods 32 is determined by the length of the rods multiplied by the pressure between the rods." '736 Patent, Col. 13, ln. 3-6 (emphasis added). Similarly, in response to an interrogatory, AB/Sciex stated "that the pressure in the `first chamber' is most appropriately measured within the `elongated space' defined by the `first rod set.'" Plaintiff's Response to Micromass, Inc's First Set of Interrogatories, at 12.
In response, AB/Sciex contends that Micromass is seeking to import claim limitations from the specification and extrinsic evidence, such as the interrogatory response, into the claims. The court agrees. Micromass does not cite any support for its interpretation of the claim anywhere in the language of the claims themselves, and instead cites only the unequivocally true statement in the specification that it is the pressure between the rods that determines whether collisional focusing will improve ion transmission. It is well-established that the specification should not be used to incorporate into the patent claims a limitation existing only in the patent's specification. See Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1053 (Fed.Cir.1989). Thus, the court finds that neither claim 1(j) or 14(f) contains *522 a limitation on the location where the pressure in the first vacuum chamber should be measured.
2. "length of said first rod set"
Micromass argues that the "length of first rod set," as that term is used in claims 1(j) and 14(f) must mean "the length of the quadrupole rods." As noted earlier, supra at 508, the court has found that the claims do not require that the first rod set be a set of quadrupole rods. Thus, the court will not impart this limitation on the claims.
3. "equal to or greater than 2.25 × 10-2 torr cm"
Micromass argues that claims 1(j) and 14(f) require that the lower limit of P × L in the first vacuum chamber be 2.25 × 10-2 torr cm. Micromass's position anticipates that AB/Scies will argue that the lower limit of P × L could actually be lower than this specific quantity. In AB/ Sciex's response to Micromass's interrogatories, AB/Sciex discussed where in the first vacuum chamber pressure should be measured. It stated, "one skilled in the art would also conclude that if, based on pressure measurement at or near the [vacuum] pump aperture, the pressure times rod length in the `first chamber' was slightly less than 2.25 × 10-2 torr cm, the pressure within the `elongated space' times the rod length might nevertheless be equal to or greater than 2.25 × 10-2 torr cm." Concerned that AB/Sciex might use this statement to further lower the pressure required in any particular section of the first vacuum chamber, Micromass seeks to hold AB/Sciex to the 2.25 × 10-2 torr cm limit.
While AB/Sciex does not stipulate in its response that the lower limit permitted by the claim is 2.25 × 10-2 torr cm, it does argue that the meaning of the claim is clear and therefore does not require construction. The court therefore concludes that the plain meaning of the claim is clear the P × L product in the first vacuum chamber must be equal to or greater than 2.25 × 10-2 torr cm.
4. "below that pressure at which an electrical breakdown will occur between the rod means"
Micromass makes two arguments concerning the upper limit of pressure in the first vacuum chamber. First, apart from however the term "electrical breakdown" is construed, it argues that the pressure should not exceed 30 millitorr. This argument is based on a comment in the patent's specification that "enhancement of the ion signal through orifice 34' occurred up to between 25 and 30 millitorr. Above these pressures, the signal was reduced as compared with that at 2.4 millitorr." Id., Col. 13, ln. 51-54. Because the objective of the invention is to increase ion transmission, and because this did not occur above 30 millitorr, Micromass contends that the upper limit of pressure in the first vacuum chamber must be 30 millitorr. The weakness in Micromass's argument is apparent. Micromass furnishes no support from the claims themselves that support a 30 millitorr upper limit. Indeed, the claim's recitation of "electrical breakdown" as the upper limit of pressure directly contradicts using a fixed standard like 30 millitorr. The court will not import limitations from the specification into the claims themselves. See Intervet Am. Inc., 887 F.2d at 1053.
Accepting the "electrical breakdown" standard on its face, Micromass's second argument is that this claim should be construed as "a discharge of electricity between the rod means of the first rod set." It finds support for this interpretation in the reports of its experts. AB/Sciex counters that "electrical breakdown" occurs *523 where the instrument ceases to function, although "[c]ertainly in such case there will be a discharge of electricity between the rods." Plaintiff's Rebuttal Claim Construction Br. at 58. AB/Sciex also contends that because this claim term is not relevant to any question of infringement, it is irrelevant and need not be construed.
While the court is not in a position to discern whether the upper pressure limit for the first vacuum chamber will become relevant to the question of infringement, it will nonetheless refuse to construe "electrical breakdown" at this time on the basis that the briefing on the term is limited. Should the parties require a construction at some later date, they may request a supplemental opinion.
Thus, the court will construes claims 1(j) and 14(f) to require that "the pressure in the first vacuum chamber is at level such that the product of the pressure and the rod length (`P × L') is equal to or greater than 2.2.5 × 10-2 torr cm, but the pressure is not so high that electrical breakdown will occur between the rods."
O. "means for maintaining the kinetic energies of ions moving from said inlet orifice to said rod set at a relatively low level" and "controlling the kinetic energies of ions entering said first rod set to maintain such kinetic energy at a relatively low value"
Claim 1(k) requires a "means for maintaining the kinetic energies of ions moving from said inlet orifice to said first rod set at a relatively low level, whereby to provide improved transmission of ions through said interchamber orifice." This claim is a means-plus-function limitation subject to paragraph 6 of 35 U.S.C. § 112. AB/Sciex posits that the function described in claim 1(k) is "to maintain the kinetic energies of ions moving from the inlet orifice of the first vacuum chamber to the rod set at a level below that at which significant fragmentation of ions will occur." It cites two structures revealed in the specification to accomplish this function: (1) the DC potential between the inlet orifice and the rod set; and (2) the pressure in the first vacuum chamber.
Claim 14(h) requires "controlling the kinetic energy of ions entering said first rod set to maintain such kinetic energy at a relatively low value," and, when combined with the phrase at the end of claim 14, "whereby to provide improved transmission of ions through said interchamber orifice." AB/Sciex suggests that the phrase, which is not a means-plus-function claim limitation, means "adjusting the DC potential between the inlet orifice and the rod set and the pressure in the first vacuum chamber to maintain the kinetic energy of ions entering the first rod set at a level below that at which significant fragmentation of the ions will occur." This construction is substantially the same as that AB/ Sciex has suggested for claim 1(k).
Rather than address claim 1(k) and 14(h) as a whole, Micromass has divided the claims into their component terms and phrases for construction. Thus, the court will discuss these terms and phrases in turn.
1. "maintaining" and "maintain"
Micromass asserts that the plain meaning of "maintaining" or "maintain" is "to carry on," "to continue," and "to keep unimpaired." Thus, it asserts that the proper construction of "means for maintaining the kinetic energies of ions ... at a relatively low level" in claim 1(k) and "maintain such kinetic energy at a relatively low value" in claim 14(h) is one that requires "the kinetic energies be kept unimpaired at a relatively low level through the relevant region."
*524 AB/Sciex contends that "maintaining" and "maintain" are common words used in their everyday manner and therefore require no further construction. It notes, however, that Micromass's proposed construction of those terms that "the kinetic energies be kept unimpaired" contains two implications not required by the claim language. First, AB/Sciex is concerned that Micromass intends to imply that the kinetic energy of ions can never vary through the region between the inlet orifice and the first rod set. It argues that this construction is not supported by the claim language. The court agrees. Read in whole, the claim limitations require that the kinetic energies of the ions be maintained at a relatively low level throughout the relevant region. The claims do not require that the kinetic energy of ions never fluctuate. Indeed, the kinetic energies of ions may fluctuate greatly, as long as the kinetic energy of those ions does not surpass the relatively low value or level required by the claim.
Second, AB/Sciex is concerned that Micromass's construction implies that the kinetic energies of all the transmitted ions be maintained at a relatively low level. Again, such a construction would be at odds with the claim language. Claim 1(k) requires only "maintaining the kinetic energies of ions ...." It does not say "all ions," but instead indicates the number of ions needed to meet the limitation only be expressing "ions" in the plural. Thus, the court concludes that only a plurality of ions need to be maintained a relatively low level to satisfy this limitation.
Thus, "maintaining" and "maintain" are used in their ordinary sense and require no further construction except to note that the use of these terms in claims 1(k) and 14(h) requires neither that (1) the kinetic energies of the ions never vary, nor (2) all ions satisfy this claim limitation.
2. "kinetic energy of ions"
Micromass posits that the "kinetic energy of ions" should be construed to mean "the energy associated with motion," as opposed to the ions' potential energy or internal energy.
AB/Sciex does not disagree, but argues that to the extent that Micromass attempts to add a further limitation to the claim language, it should be rejected. It does not explain, however, what further limitation might be added by Micromass's proposed construction.
"Kinetic" is defined as "of or relating to the motion of material bodies and the forces and energy associated therewith." Webster's Ninth New Collegiate Dictionary 662 (1991). This definition is consonant with that provided by Micromass and the court will therefore adopt Micromass's proposed construction of "kinetic energy of ions" as "energy associated with the motion of ions."
3. "relatively low level" or "relatively low value"
As noted above, AB/Sciex contends that the "relatively low" level or value of kinetic energy at which the ions must be maintained is such that the ions will avoid significant fragmentation caused by collision induced dissociation.
Micromass argues that the term "relatively low," as used in the claims, is indefinite and therefore all of the claims of the '736 patent should be held invalid as indefinite under paragraph 2 of 35 U.S.C. § 112. It also argues that AB/Sciex's proposed construction of "relatively low" is similarly indefinite, because it would require understanding how much fragmentation is "significant." Micromass does not, however, offer an alternative construction of "relatively low." Rather, it simply criticizes AB/Sciex's proposed construction by *525 arguing it has no basis in the words of the claims.
The claims themselves provide no support for AB/Sciex's proposed construction of "relatively low." Nor is it apparent, from the face of the claims themselves, what meaning should be ascribed to that term.
The only discussion of "relatively low" is in the claim specification's discussion of the relationship between kinetic energy and the dissociation of ions.
"[I]t appears that a large number of relatively low energy collisions are effective in damping both the radial and axial velocities of the ions and in forcing the ions by collisional damping closer to the centre line of the AC-only rod set 32. It appears that more energetic collisions, which occur when the offset voltage is higher, do not have a similar effect and in fact for some reason reduce the ion signal. Further, a high ion energy can lead to collision induced dissociation, resulting in further ion loss."
'736 Patent, Col. 12, ln. 39-49 (emphasis added). Furthermore, in the patent reexamination proceedings, MDS made several comments in distinguishing tandem mass spectrometers on the basis that they use a high pressure to fragment ions. MDS stated, "[t]he use of high pressure gas and high kinetic energy parent ions to cause fragmentation is in contrast to the invention which maintains the kinetic energy of ions at a relatively low level and uses an increased pressure to improve ion transmission." Request for Reexamination, at 18.
On the basis of the statements made in the specification and reexamination, the court concludes that the relationship of high kinetic energies and collision induced dissociation is clear from the patent's intrinsic evidence. It is therefore appropriate to construe "relatively low" by resort to what the patent specification and prosecution history state will occur when the kinetic energy is not relatively low fragmentation caused by collision induced dissociation. Whether the fragmentation needs to be "significant," however, is not supported by the specification or prosecution history. The specification only indicates "relatively low energy collisions" improve the operation of the mass spectometer, that "energetic collisions" reduce the ion signal and that "high ion energy" results in further ion loss. Thus, the specification supports construing "relatively low" to mean that further increases would "reduce the ion signal."
Thus, the court will construe "relatively low level" and "relatively low value" to mean "the level or value of kinetic energy below the level at which the ion signal is reduced by further increases of the kinetic energy." This construction is consistent with the whereby clause in claims l(k) and 14(h) discussed next.
4. "whereby to provide improved transmission of ions through said interchamber orifice"
Micromass argues at length that the two "whereby clauses" at the end of claims l(k) and 14, are claim limitations because they describe the "necessary result" or "critical property" of the claimed invention. See KX Indus., L.P. v. Culligan Water Techs., Inc., 90 F.Supp.2d 461, 487-88 (D.Del. 1999) (holding that a whereby clause that was substantially amended to overcome prior art was sufficiently definite to constitute a claim limitation and did not simply announce the invention's result). This is in contrast to the general rule that "a whereby clause that merely states the result of the limitations in the claim adds nothing to the patentability or substance of the claim" and is therefore not a claim limitation. Texas Instruments, Inc. v. United States Int'l Trade Comm'n, 988 *526 F.2d 1165, 1172 (Fed.Cir.1993). Thus, Micromass proposes construing the whereby clause to mean that one practicing the invention must realize improved ion transmission through the interchamber orifice relative to the number of ions that would be transmitted without practicing the invention.
AB/Sciex agrees that the whereby clause is a claim limitation, but argues that Micromass's proposed construction is too broad because it defines "improved" as "relative to the number of ions that would be transmitted without practicing the invention." According to AB/Sciex, Micromass's proposed construction would foster a comparison between the ion transmission rates of any other method of ion transmittal and the claimed invention. It is difficult to understand AB/Sciex's concern. Assuming the whereby clause is a claim limitation, it is only meaningful to the extent that a potential infringer might practice all of the other claims and somehow not realize improved ion transmission through the interchamber orifice. Thus, AB/Sciex's concern that Micromass might try to avoid infringement by comparing any other method of ion transmission to the claimed invention is unfounded.
Nonetheless, the court agrees with AB/Sciex that the "whereby" clause requires no further construction. The proper construction of the whereby clause is self-evident from the face of the claims, which state "to provide improved transmission of ions through said interchamber orifice." The court will therefore decline to provide further construction of the claim.
5. "means for maintaining the kinetic energy of ions"
Claim 1(k) is a means-plus-function limitation. Therefore the court must identify both the claimed function and the structure in the patent specification corresponding to that function. See Lockheed Martin Corp., 249 F.3d at 1324-25. The function listed in claim 1(k) is "maintaining the kinetic energies of ions moving from said inlet orifice to said first rod set at a relatively low level." The crux of the parties' dispute over this element, however, is if there is any corresponding structure revealed in the specification and, if so, what that structure is and how it should be construed.
AB/Sciex contends that the structure revealed in the patent's specification is the application of two variables: (1) a DC potential voltage between the inlet orifice (26) and the first rod set (32), and (2) the pressure in the first vacuum chamber (30). Because the function of the claim limitation is maintaining a low kinetic energy, and because throughout the specification it discusses how the kinetic energy of the ions is a function of these two variables, the structure must involve both the voltage and the pressure. See '736 Patent, Col. 6, ln. 3-10 (discussing an improved ion transmission caused by using a high pressure vacuum chamber and a low DC difference voltage); Col. 12, ln. 3-5 ("higher gas pressures and relatively low DC difference voltages ... have been found to produce the following advantages."). Indeed, the specification repeatedly explains the relationship between kinetic energy and either voltage or pressure. In Column 8, for example, the patent specification discusses at length the effect of using 10 volts, but increasing the pressure in the chamber. See id., Col. 8, In. 6-40. The patent recites that the kinetic energy of the ions, measured in electron volts (eV) decreased as the pressure in the first vacuum chamber was increased, because "the collisional effects were removing both axial and radial velocities from the ions." Id., Col. 8, In. 29-40, 50-52. That is, holding the voltage constant, the kinetic energy of ions decreased as the pressure increased. The specification also explains that, holding the *527 pressure constant, increasing the voltage will increase the kinetic energy ions. See id., Col. 12, ln. 44-45 ("It appears that more energetic collisions, which occur when the offset voltage is higher ... reduce the ion signal.").
Micromass argues that the specification contains no structure that corresponds to the function recited in claim 1(k) and is therefore indefinite in scope and invalid.[3] But because the court has not yet addressed Micromass's invalidity motion, it argues that if it is forced to assume that a structure exists in the specification, that structure is only the offset voltage applied between the inlet orifice and the first rod set, as discussed in dependant claims 8 through 11.
A/B Sciex contends that, in light of the patent specification's extensive discussion of the effects of pressure and voltage on kinetic energy, Micromass's default position that the structure for accomplishing the function is only voltage cannot be correct. After careful consideration of the specification, the court agrees with AB/ Sciex. As noted above, the patent specification repeatedly recites the effect of the pressure in the first vacuum chamber on the kinetic energy of ions entering it. Thus, the structure for accomplishing that function must be both voltage and pressure.
Having adopted AB/Sciex's position on the structure corresponding to the function of claim 1(k), the court will turn to three limitations Micromass seeks to add that it believes are revealed in the specification.
First, Micromass argues that the only offset voltage parameter disclosed by the specification is 1-30 volts and that the structure should thus be so limited. The specification explains that "[t]he experiments which have been conducted show that a preferred range for the difference voltage between the AC-only rods 32, 32', the wall 28 or skimmer 74 is between about 1 and 30 volts DC." '736 Patent, Col. 12, ln. 57-60. AB/Sciex responds that while the 1-30 volts yielded the best results, the specification does not require such a voltage range. Indeed, to do so would be inconsistent with the specification's repeated instruction that kinetic energy is a function of both voltage and pressure. Moreover, the specification itself states that a "high difference voltage (e.g. of between 40 and 100 volts DC) ... may still produce signal enhancement effects." Id. Col. 12, ln. 53-56. Thus, the court does not believe the specification requires limiting the voltage parameters to 1 to 30 volts.
Second, Micromass argues that the specification provides a maximum voltage of 40 volts can be used at "high" pressures, such as 2.5 millitorr or higher. It notes that the specification states, "[a] difference voltage of between 40 and 100 volts between the AC-only rods 32 or 32', and the wall 28 or skimmer 74 tended to shut off the ion signal at pressures of 2.5 millitorr and higher in chamber 30, 30'." See id., Col. 12, ln. 49-52. Again, this upper limit of 40 volts, like the restriction of 130 volts, is not required by the specification, which discusses the importance of both voltage and pressure and explains that, given appropriate circumstance, signal enhancement might be experienced at voltages of up to 40 to 100 volts.
*528 Third, it argues that to maintain a constant low kinetic energy, there must be an inverse relationship between the pressure in the first chamber and the offset voltage applied. See id. at Col. 12, ln. 30-35 ("the DC difference voltage ... should normally be low at the high pressures used."); Col. 11, ln. 7-12 ("when the AC-only rod set 32' is operated at a high pressure (e.g. 5 millitorr) with a relatively low CD difference voltage ... then ... higher ion signals [are] received."); Col. 6, ln. 3-10 ("when the same high pressure experiments were conducted .. with the DC difference voltage ... between 1 and 10 volts .... [t]he ion signal increased significantly."); Col. 9, ln. 35-40 ("the ion to gas ratio entering the AC-only rods 32' increased ... when appropriate pressures (typically 5 to 8 millitorr) were used in chamber 30' and when an appropriate DC difference voltage (preferably about 1 to 15 volts) existed."). In addition to these statements, Micromass points to the table in Column 11 of the patent and notes that where the pressure in the ion guide chamber was relatively low (0.5 millitorr in Figures 17 and 18), the inventors used a high difference voltage of 85 and 90 volts. See id., Col. 11, ln. 23-33. But when the pressure in the ion guide was relatively high (5.6 millitorr in Figures 15 and 16), the inventors used a low difference voltage of 5 and 15 volts. See id.
AB/Sciex argues that Micromass is wrong that the two must have an inverse relationship and that its conclusion is based on an erroneous reading of the table in column 11. The table in column 11 cannot be relied upon for this conclusion, AB/Sciex explains, because at 0.5 millitorr, the P × L product in the example is not at or above 2.25 × 10-2 torr cm. It also argues that in some of the experiments, increasing voltage and increasing pressure both produced better ion transmission. While this conclusion is interesting, it is also irrelevant. At any given voltage and pressure, increasing both or decreasing both might result in an improved ion flow. But the point made by Micromass is that if the kinetic energy of the ions is held constant, then the voltage and pressure must bear an inverse relationship. This conclusion is a natural corollary of AB/Sciex's own position that increasing pressure will decrease kinetic energy and increasing voltage will increase kinetic energy. Because Micromass's proposed limitation is a corollary of the two relationships AB/Sciex already requests as the structure, however, it is unnecessary to require Micromass's limitation because it is self-evident.
Therefore, the court finds that the structure corresponding to the function in claim 1(k) "maintaining the kinetic energies of ions ... at a relatively low level" is the use of two operating parameters: (1) the DC potential voltage between the inlet orifice and the rod set; and (2) the pressure in the first vacuum chamber.
6. "controlling"
Claim 14(h) states "controlling the kinetic energy of ions entering said first rod set to maintain such kinetic energy at a relatively low value." Micromass asserts that the proper construction of "controlling" is "to exercise restraining or directing influence over," "regulate," or "to have power over." It then argues that the claim specification nowhere discloses how one might practice the method of "restraining or directing influence over" the kinetic energy of ions, other than perhaps the use of an offset voltage between 1 and 30 volts, and possibly up to 40 volts, between the inlet orifice and the first rod set. Although it does not say so, it appears that Micromass is proposing to the court a definition of "controlling" that would require the practitioner of the invention to use these voltage parameters.
AB/Sciex disagrees. It argues that the meaning of "controlling" is clear and does *529 not require construction by the court. Moreover, Micromass's proposed construction seeks to import from the specification limitations not listed in the claim.
The court agrees. As Micromass notes, the meaning of "controlling" is well understood as "exercising restraining or directing influence over." This meaning is unambiguous and clear from the claim. The fact that the specification may recite particular voltage levels by which the control can be administered neither contradicts this construction nor introduces further clarity. Instead, Micromass is seeking to import parameters existing only in the specification to the claim limitations themselves. It may not do so. See Intervet Am., Inc., 887 F.2d at 1053.
III. CONCLUSION
For the foregoing reasons, the disputed claims of the '736 patent are construed as follows.
--------------------------------------------------------------------------------------------------------
"comprising" Including, but not limited to
--------------------------------------------------------------------------------------------------------
"vacuum chamber" A chamber maintained at less than atmospheric pressure
---------------------------------------------------------------------------------------------------------
"first vacuum chamber" A vacuum chamber
---------------------------------------------------------------------------------------------------------
"second vacuum chamber" A vacuum chamber coming after, in the path of ion travel, the
first vacuum chamber
---------------------------------------------------------------------------------------------------------
"first rod set" A rod set
---------------------------------------------------------------------------------------------------------
"second rod set" A rod set coming after, in the path of ion travel, the first rod
set
---------------------------------------------------------------------------------------------------------
"first space" A space
---------------------------------------------------------------------------------------------------------
"second space" A space coming after, in the path of ion travel, the first space
---------------------------------------------------------------------------------------------------------
"inlet orifice" An orifice that provides an inlet into the first vacuum chamber
for the passage of ions and neutral gas molecules
---------------------------------------------------------------------------------------------------------
"separated by a wall" At least a wall between the first and second vacuum chambers
---------------------------------------------------------------------------------------------------------
"interchamber orifice" An orifice in a wall between the first and second vacuum
chambers
---------------------------------------------------------------------------------------------------------
"so that ions may travel Ions must travel through at least the recited structures
through said inlet orifice,
through said first space,
through said interchamber
orifice, and through said
second space" and "so that
an ion may travel through
said first space, said interchamber
orifice and said
second space
----------------------------------------------------------------------------------------------------------
"located end to end" The rod sets and spaces must be arranged in a manner that
ions may be successfully transmitted from the end of the first
rod set or the first space to the end of the second rod set or
second space
-----------------------------------------------------------------------------------------------------------
"aligned" Being in or coming into precise adjustment or correct relative
position
-----------------------------------------------------------------------------------------------------------
"ions of a trace substance The trace substance is to be analyzed
to be analyzed"
-----------------------------------------------------------------------------------------------------------
"directing said ions through Ions traveling on the recited path through an inlet wall, the
an inlet orifice in an inlet first space, interchamber orifice, and second space must be
wall into said first space, detected to analyze the substance
first through said first
space, said interchamber
orifice and then through
said second space, and then
*530
detecting the ions which
have passed through said
second space to analyze
said substance,"
------------------------------------------------------------------------------------------------------
"means ... for directing The function of this element is "directing said ions through
said ions through said inlet said inlet orifice into said vacuum chamber." The corresponding
orifice into said vacuum structure, material, or acts described in the specification
chamber" is either, or both, of two independent operating parameters:
(1) the application of appropriate DC potential
between the inlet orifice and the rod set in the first vacuum
chamber; and/or (2) a difference in the pressures on either
side of the inlet orifice.
------------------------------------------------------------------------------------------------------
"guide ions through" and Ions are guided through the first space (claim 1(3)) or
"guide ions therethrough" between the rod means of said first set (claim 14(c)).
------------------------------------------------------------------------------------------------------
"means for flowing gas" The function of this element is "to flow gas through said inlet
orifice and into said first space." The corresponding structure,
material, or acts described in the specification is the
existence of gas in a chamber, separated from the first
vacuum chamber by the inlet orifice, at a higher pressure
than that in the first vacuum chamber.
-------------------------------------------------------------------------------------------------------
"equal to or greater than The product of the pressure in the first vacuum chamber and
2.25 × 10-2 torr cm the length of the rods in the first rod set must be equal to or
greater than 2.25 × 10-2 torr cm
--------------------------------------------------------------------------------------------------------
"kinetic energy of ions" Energy associated with the motion of ions
--------------------------------------------------------------------------------------------------------
"relatively low level" or The level or value of kinetic energy below the level at which
"relatively low value" the ion signal is reduced by further increases of the kinetic
energy
---------------------------------------------------------------------------------------------------------
"means for maintaining the The function of this element is "maintaining the kinetic
kinetic energy of ions" energy of ions moving from said inlet orifice to said first rod
set at a relatively low level." The corresponding structure,
material, or acts described in the specification is the application
of two variables: (1) a DC potential voltage between the
inlet orifice and the first rod set, and (2) the pressure in the
first vacuum chamber.
----------------------------------------------------------------------------------------------------------
NOTES
[1] Neither party attaches significance to the fact that "end-to-end" in claim 14 is hyphenated and "end to end" in claim 1 is not.
[2] The parties treat "guide ions through" and "guide ions therethrough," for purposes of this construction, interchangeably.
[3] Indeed, much of Micromass's briefing is directed to the alleged indefiniteness of the means-plus-function limitation in claim 1(k). While the court will go on to evaluate the specification to construe the structure, it does not mean to foreclose Micromass's numerous other arguments, including that the voltage and pressure parameters are not a "structure" for purposes of a means-plus-function limitation and that the specification does not "clearly link" a structure to the function.
|
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4355
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD COPELAND, a/k/a Big Eddie,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cr-00135-PMD)
Submitted: January 10, 2008 Decided: August 25, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Guy J. Vitetta, Charleston, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Carlton R. Bourne, Jr.,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Edward Copeland of conspiracy to
distribute powder cocaine and cocaine base (“crack”) and possession
with intent to distribute crack, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1) (2000), and possession of ammunition by a
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), (e)(1)
(2000). The district court sentenced Copeland to life
imprisonment, and Copeland timely appealed. Copeland asserts on
appeal that the district court erroneously denied his motions to
suppress evidence and statements obtained following the service of
a subsequently invalidated arrest warrant. The district court
found the good faith exception to the exclusionary rule articulated
in United States v. Leon, 468 U.S. 897 (1984), applied. We affirm.
We review the district court’s factual findings for clear
error and the court’s legal determinations de novo. See Ornelas v.
United States, 517 U.S. 690, 691 (1996); United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). The evidence is viewed in the
light most favorable to the Government. See United States v.
Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
If a warrant is found to be defective, the evidence
obtained from the defective warrant may nevertheless be admitted
under the good faith exception to the exclusionary rule. See Leon,
468 U.S. at 922-23. Evidence seized pursuant to a defective
warrant will not be suppressed unless: (1) the affidavit contains
- 2 -
knowing or reckless falsity; (2) the magistrate acts as a rubber
stamp for the police; (3) the affidavit does not provide the
magistrate with a substantial basis for determining the existence
of probable cause; or (4) the warrant is so facially deficient that
an officer could not reasonably rely on it. United States v.
Wilhelm, 80 F.3d 116, 121-22 (4th Cir. 1996). With these standards
in mind, we find no error. We therefore affirm the district
court’s conclusion that the good faith exception was applicable.
Accordingly, we affirm Copeland’s convictions.* We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
*
We deny Copeland’s pro se motion for copies of documents.
- 3 -
|
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABEL CANAS-NEVAREZ, AKA Luis No. 19-71300
Nevarez-Quintana,
Agency No. A206-263-223
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2020**
San Francisco, California
Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,*** District Judge.
Abel Canas-Nevarez (“Petitioner”) is a native and citizen of Mexico. He
petitions for review of an order of the Board of Immigration Appeals (“BIA”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
dismissing his appeal from the decision of an Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252
and deny the petition.
1. The BIA correctly determined that Petitioner’s asylum application was
untimely and not subject to an exception to the one-year filing deadline available
for “changed” or “extraordinary circumstances.” 8 U.S.C. § 1158(a)(2)(D). Even
assuming that the murder of Petitioner’s wife’s nephew in 2015 or the increase in
violence in Mexico are “changed circumstances,” Petitioner could have filed his
application at any of his pre-October 2016 court dates. Petitioner therefore failed
to file his application within a reasonable period of time under the circumstances.
See Martinez-Velasquez v. Holder, 605 F. App’x 641, 643 (9th Cir. 2015).
2. Substantial evidence supports the BIA’s denial of withholding of removal
because Petitioner failed to establish a clear probability of persecution on account
of family membership. See Reyes v. Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016)
(stating standard of review). Petitioner has the burden to prove that a nexus exists
between the persecution and an asserted protected ground. See id. at 1132 n.3.
Petitioner did not establish a “pattern of persecution closely tied to the applicant,”
Mgoian v. I.N.S., 184 F.3d 1029, 1036 (9th Cir. 1999) (internal quotation marks
omitted), but rather only gang violence in general, see Zetino v. Holder, 622 F.3d
2
1007, 1016 (9th Cir. 2010).
3. Substantial evidence supports the BIA’s determination that Petitioner
failed to establish a clear probability of torture by or with the acquiescence or
willful blindness of a government official. See 8 C.F.R. §§ 1208.16, (c)(2), (c)(4),
1208.17, 1208.18(a)(1), (7). There was no evidence of past torture. Petitioner’s
generalized fear of police acquiescence in future mistreatment does not require
CAT relief. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).
Finally, a general fear of future persecution is undercut when similarly situated
family members live in the country unharmed. See Tamang v. Holder, 598 F.3d
1083, 1094 (9th Cir. 2010). Moreover, the IJ reasonably found a possibility of
internal relocation, as the record demonstrated that Petitioner’s stepchildren
internally moved around Mexico.
All pending motions are denied.
PETITION DENIED.
3
|
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 5, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AM ERICA,
Plaintiff-Appellee,
No. 06-5209
v.
JACK W AYNE M cKERRELL, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the N orthern District of Oklahom a
(D.C. No. 06-CR-68-CVE)
Timothy L. Faerber, Assistant United States Attorney (David E. O’M eilia, United
States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
Barry L. Derryberry, Assistant Federal Public Defender (John V. Butcher, Federal
Public D efender, and Robert A. Ridenour, Assistant Federal Public D efender,
with him on the brief), Tulsa, Oklahoma, for D efendant-Appellant.
_________________________________
Before BR ISC OE, HOL LOW AY, and O’BRIEN, Circuit Judges.
_______________________________
H O L LO W A Y, Circuit Judge.
The Supreme Court in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515,
1519 (2006), held that the Fourth Amendment forbids a warrantless search of a
shared dw elling for evidence over a physically-present resident’s express
objection, notwithstanding his or her co-tenant’s consent to search. W e must
decide whether barricading oneself in one’s residence, in an unsuccessful effort to
avoid a lawful arrest, vitiates a co-tenant’s subsequent consent to search the
residence. W e hold that under the circumstances here, where the district court
found that Defendant Jack M cKerrell, Jr. (“M cKerrell”) barricaded himself in his
residence to avoid arrest and never expressly objected to a possible search,
M cKerrell’s co-tenant’s consent justifies the challenged search. W e also hold
that the police removed M cKerrell from the scene to carry out a lawful arrest, not
to mute his potential objection to the search. W e therefore affirm the district
court’s denial of M cKerrell’s motion to suppress.
I. BACKGROUND
On February 24, 2006, an anonymous caller informed the Tulsa Police
Department that M cKerrell had outstanding arrest warrants, used
methamphetamine, and possessed an assault rifle and a shotgun. R., Vol. I, Doc.
25, at 2. The police investigated this tip and discovered that M cKerrell had two
outstanding felony warrants from Tulsa County, Oklahoma, for possessing a
stolen vehicle, two municipal traffic w arrants from Tulsa, Oklahoma, and a four-
count felony warrant from Craig County, Oklahoma, for drug and traffic charges.
Id. Officers determined M cKerrell’s address by searching utility-company
records. Id.
Less than two weeks later, another caller told the police that M cKerrell was
-2-
working at home in his front yard. Id. In response, several police officers
surrounded the residence and announced their presence. R., Vol. III, at 9-10. By
that time, M cKerrell was inside the home w ith his wife and young child, both of
whom also resided at the home. Id. at 9, 12, 34. Instead of peacefully
surrendering to the officers, however, M cKerrell quickly closed the garage door
and front door to barricade himself inside. Id. at 10.
W ithin minutes, M rs. M cKerrell exited the home, leaving M cKerrell and
their young child inside. Id. at 10, 12. The police began negotiating with
M cKerrell by calling a cell phone in the home and requesting, over the course of
three or four conversations, that he surrender. Id. at 16, 17. Both parties dispute
what was said during these conversations and M cKerrell’s motive for refusing to
leave the house. Sergeant M iddleton, who spoke with M cKerrell on the phone,
testified that M cKerrell never objected to a search and was concerned solely with
being arrested. Id. at 16. W hile Sergeant M iddleton could not recall whether
M cKerrell told him not to enter the residence, id. at 17-18, the Sergeant clearly
remembered that the conversation related entirely to whether M cKerrell would
allow the officers to execute the several valid arrest warrants. Id. at 20-21.
Indeed, he testified that M cKerrell never objected to a search. Id. at 16.
Sergeant W itt, another officer at the scene, testified similarly: M cKerrell
did not express an objection to a search either before or after the police arrested
him. Id. at 6. M cKerrell testified that he expressly informed the police several
-3-
times that he did not want them inside his home. Id. at 49. The district court
found that M cKerrell never expressly refused to provide his consent to search.
R., Vol. I, Doc. 25, at 8-9. Instead, the district court credited the officers’
testimony that the subject of these telephone conversations was M cK errell’s
desire to avoid arrest. Id.
After these three or four conversations, M cKerrell decided to surrender
peacefully. R., Vol. III, at 17, 12. The police handcuffed M cKerrell
immediately. Id. at 12. They did not speak to him about searching the residence
or prohibit him from speaking with M rs. M cKerrell. Id. at 6; Id. at 23, 30. They
merely placed him under arrest and transported him to the police station about
five minutes later. Id. at 12. Sergeant W itt testified that the police did not
remove M cKerrell from the scene to prevent him from influencing M rs.
M cKerrell’s decision about consenting to a search. Id. at 13. M ore broadly,
Sergeant W itt testified that the officers’ decision to remove M cKerrell from the
scene was unrelated to their decision to search the house. Id. at 13-14. Sergeant
M iddleton confirmed that nothing unusual occurred: “it is not unusual [that we
took M cKerrell away from the scene so quickly]. Usually, once we make the
arrest, w e put them in the vehicle and transport them.” Id. at 19-20.
After M cKerrell had left the scene, Sergeant W itt asked M rs. M cKerrell to
speak with him and Sergeant Petree. Id. at 5. The district court found no
evidence that the police coerced her to do so. R., Vol. I, Doc. 25, at 8. M rs.
-4-
M cKerrell agreed to speak with the officers, and they all entered the home, with
M rs. M cKerrell’s permission, to begin the conversation. R., Vol. III, at 6.
Sergeant W itt used this conversation as an opportunity to determine how
long the M cKerrell family had lived at this home (about four years) and the scope
of M rs. M cKerrell’s authority over the home’s interior. Id. at 7. Sergeant W itt
testified that M rs. M cKerrell “[had] full run of the house,” which he inferred from
M rs. M cKerrell’s statement that she did laundry in the home and was able to
access every drawer and closet in the home. Id.
After discussing other questions that M rs. M cKerrell posed, primarily
questions about M cKerrell’s bond, the officers asked M rs. M cKerrell for her
consent to search the home. Id. at 8. Sergeant Petree presented M rs. M cKerrell
with a consent form and explained its contents, which notified M rs. M cKerrell,
inter alia, that she had the right to withhold her consent and the right to stop the
search at any time. Id. at 8, 23-25; R., Vol. I, Doc. 23, Ex. 1. M rs. M cKerrell
orally consented and then signed the form. R., Vol. III, 24-25; R., Vol. I, Doc.
23, Ex. 1. It is undisputed that M cKerrell was absent when M rs. M cKerrell
consented to this search. R., Vol. I, Doc. 25, at 9. The police then searched the
home and found four firearms, which M cKerrell possessed illegally.
Ultimately, M cK errell filed a motion to suppress, arguing that the officers
violated the Fourth Amendment by searching his residence based on his wife’s
consent. R., Vol. I, Doc. 16. The district court denied M cKerrell’s motion
-5-
because M rs. M cKerrell’s consent was sufficient to justify the search in light of
M cKerrell’s failure to object to the search. R., Vol. I, Doc. 25, at 8-9.
Specifically, the court found that M cKerrell’s conduct at the scene— shutting his
doors and remaining inside— related solely to his desire to avoid arrest. Id. at 8.
The district judge found “persuasive the testimony of the officers that defendant
did not expressly refuse consent to search his home.” Id. at 9. Thus, the court
distinguished Georgia v. Randolph because M cKerrell never “articulated ‘express
refusal of consent to a police search’ to officers prior to [M rs. M cKerrell’s]
consent to search their home.” R., Vol. I, Doc. 25, at 9 (citing 126 S.Ct. at 1523,
1528).
M cKerrell then pleaded guilty to possessing firearms after a former felony
conviction, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and received a
sentence of 37 months’ imprisonment, 3 years’ supervised release, a $100 special
assessment, and a $1,500 fine. R., Vol. I, Doc. 42. M cKerrell reserved the right
to appeal the denial of his motion to suppress the use as evidence of the firearms
seized from his residence. R., Vol. I, Doc. 10, at 1, 3. He now appeals his
conviction, asserting error in the district court’s denial of his motion to suppress.
W e exercise jurisdiction under 28 U.S.C. § 1291.
II. D ISC USSIO N
M cKerrell challenges the search’s constitutionality on two grounds: first,
he says that the search violated the Fourth Amendment because barricading
-6-
himself in his residence conveyed his objection to the search and therefore
precluded the officers from relying on his wife’s consent; and second, he argues
that the police removed him from the scene to avoid his possible objection to the
search.
A. The Effect of M rs. M cK errell’s Consent
1.
In reviewing the denial of a motion to suppress, we accept the district
court’s factual findings unless clearly erroneous, and we view the evidence in the
light most favorable to the Government. United States v. Alcaraz-Arellano, 441
F.3d 1252, 1258 (10th Cir. 2006). W e review de novo the ultimate determination
of Fourth Amendment reasonableness. Id.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures . . . .” U.S. Const. amend. IV. This protection takes on special meaning
when the challenged intrusion involves the home: “physical entry of the home is
the chief evil against which the wording of the Fourth Amendment is directed.”
W elsh v. W isconsin, 466 U.S. 740, 748 (1984). But the Fourth Amendment
permits a warrantless entry and search of a home when the “police obtain the
voluntary consent of an occupant who shares, or is reasonably believed to share,
authority over the area in common with a co-occupant who later objects to the use
of evidence so obtained.” Randolph, 126 S.Ct. at 1518.
-7-
Before Randolph was decided the question remained whether the police
may search a home when one occupant sharing the residence consents, but the
other occupant, who later seeks to suppress the evidence, is present at the scene
and expressly refuses to consent. Randolph answered this question in the
negative. In Randolph, the defendant’s wife complained to the police that her
husband took away their son following a domestic dispute. Id. at 1519. W hen the
police arrived, the wife informed them that her husband was a cocaine addict, and
she volunteered that “there w ere ‘items of drug evidence’” in the house. Id. A t
this point, both the wife and the defendant were present at the home’s entrance.
The police first sought the defendant’s consent to search the residence, but he
expressly refused to consent. Id. So the police then turned to the wife and asked
for her consent, which she gave. Id. Thereafter, the police searched the residence
and found the defendant’s cocaine.
Presented with these facts, the Supreme Court in Randolph set out to decide
whether the wife’s consent was sufficient to justify the search by noting that
“[t]he constant element in assessing Fourth Amendment reasonableness in the
consent cases . . . is the great significance given to widely shared social
expectations . . . .” Id. at 1521. In other words, the Court characterized its
precedent as holding not only that a co-tenant’s consent may be valid as against
an absent, nonconsenting tenant, but also that the reasonableness of the search is
in significant part “a function of commonly held understanding about the
-8-
authority that co-inhabitants may exercise in ways that affect each other’s
interests.” Id.
Applying this methodology, Randolph stated that “it is fair to say that a
caller standing at the door of shared premises would have no confidence that one
occupant’s invitation was a sufficiently good reason to enter when a fellow tenant
stood there saying, ‘stay out.’” Id. at 1522-23. Instead, the Court reasoned that
unless there is a recognized hierarchy between the co-tenants, they must resolve
their conflict over use of their common quarters through voluntary
accommodation, not by appeals to authority. Id. at 1523.
Randolph then analyzed the facts presented. It reasoned that since a tenant
has no authority to open the door to a visitor over his or her co-tenant’s objection,
while present, a police officer has no better claim to the reasonableness of
entering than the officer would have in the absence of consent. Id. Thus, the
Court held that “a warrantless search of a shared dwelling for evidence over the
express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given to the police by another
resident.” Id. at 1526.
The Court in Randolph admitted that it was drawing a fine line by requiring
the defendant to be at the scene and to expressly refuse to consent, but the Court
reaffirmed that this is the line it drew when it stated that a search is constitutional
even if the potential objector is nearby and not invited to take part in the
-9-
threshold colloquy. Id. at 1527.
2.
Unlike in R andolph, the present case does not invite a straightforward
application of the rule that a physically-present co-tenant’s express refusal to
consent vitiates his or her fellow tenant’s consent to search. The district court
here found that M cKerrell never refused consent to the search. R., Vol. I, Doc.
25, at 8-9. M oreover, although M cKerrell argues that he impliedly refused to
consent by staying in his home after the police arrived (w hich would still
distinguish this case from Randolph because Randolph required an express
objection), the district court disagreed here. Based on the officers’ testimony, the
district court instead found that the only reason M cKerrell barricaded himself in
his residence was “to avoid arrest and to avoid the possibility of armed officers
coming into his home to forcibly arrest him while his son was also inside the
home.” Id. at 8. The court also credited the officers’ testimony that, on the
phone, M cKerrell seemed to be concerned only with the validity of the arrest
warrants, not with the possibility that the officers might search his residence.
The factual distinctions between this case and Randolph call into doubt
Randolph’s applicability. M cKerrell urges this court to apply Randolph, and
exclude the evidence obtained from his home, after deflecting our attention from
these distinctions to the instant he shut the door when the officers first arrived at
his house. M cKerrell contends that his only concern at that moment was to
-10-
prevent the officers from entering his home— the functional equivalent of
expressly refusing to consent to a search of the home. Principal Brief of
Defendant/Appellant at 11 (citing United States v. Henderson, 2006 W L 3469538,
at *1, *2 (N.D. Ill. 2006) (stating that the defendant “surely included a direction
that . . . [the police] refrain from searching [his] residence” when he said “[g]et
the fu*k out of my house”)). To be sure, the district court could have inferred
that shutting a door in the face of an imminent arrest amounts to an implied
directive to the officers to stay out. Regardless, we conclude that Randolph’s
narrow holding does not apply here.
First, unlike in H enderson, the district court here found that M cK errell’s
sole concern was to avoid arrest, not to avoid arrest and prevent the officers from
entering his home to search. The evidence supports this finding: M cKerrell never
told the officers to stay out of his home when they arrived; M cKerrell discussed
the arrest warrants when speaking on the phone with the police, but never
expressed concern over the possibility of a search; and M cKerrell never told the
officers to stay out of his home after he surrendered and the police arrested him,
arguably because his concern about being arrested dissipated upon his arrest.
W hile M cKerrell asks us to infer that he impliedly refused to consent when
he closed his doors to the police, the parties legitimately dispute w hether this
conduct related to M cKerrell’s desire to avoid arrest or to his desire to direct the
officers to leave his property and refrain from searching, or both. Although
-11-
M cKerrell testified that he objected to a search, the district court did not clearly
err by finding that M cKerrell acted solely to avoid arrest.
Second, whatever meaning w e could decipher from M cKerrell’s actions,
Randolph explicitly declined to conduct this inquiry when it required the
defendant to have expressly objected to the search. See Randolph, 126 S.Ct. at
1519. W hile M cKerrell characterizes Randolph as a sweeping pronouncement
because Randolph’s introductory paragraph stated that “a physically present co-
occupant’s stated refusal to permit entry prevails [over his co-occupant’s
consent],” id., M cKerrell’s argument ignores that this statement was tethered to
the immediately preceding sentence (w hich asked whether a present co-tenant’s
express objection vitiated his co-tenant’s consent), that Randolph carefully
delineated the narrow circumstances in which its holding applied, and that
Randolph consciously employed a rule requiring an express objection by a present
co-tenant. See id. at 1527 (stating that “[t]his is the line we draw, and we think
the formalism is justified . . . [because] there is value in the simple clarity of
complementary rules, one recognizing the co-tenant’s permission when there is no
fellow occupant on hand, the other according dispositive weight to the fellow
occupant’s contrary indication when he expresses it”) (emphasis added).
M cKerrell asks us to ignore the Supreme Court’s plain language, reject its
consciously-imposed formalism, and apply a rule likely to beget the type of
confusion Randolph intended to avoid. W e reject this approach.
-12-
Third, even if we interpreted the district court’s opinion as finding that
M cKerrell attempted to avoid arrest by impliedly directing the officers not to
enter his residence to arrest him, the police were under no obligation to obey
M cKerrell’s implied request. In Valdez v. M cPheters, we held that an arrest
warrant could support the search of a dwelling when (1) the dwelling is the
suspect’s home, and (2) the police have an objectively reasonable belief that the
suspect “could be found within at the time of entry.” 172 F.3d 1220, 1225 (10th
Cir. 1999). There is no dispute that M cKerrell lived at the dwelling where the
police found his firearm. Likewise, there is no dispute that the police reasonably
believed that M cKerrell could be found within the dwelling. Although Valdez
does not justify the search here because the officers removed M cKerrell from the
scene before entering the house, Valdez demonstrates that M cKerrell’s alleged
instructions did not erect a legal barrier at his threshold. In other words, that the
officers did not immediately enter the home in this case reflects their attempt to
peacefully resolve a potentially dangerous confrontation, not their understanding
that they had somehow been denied their authority to enter M cKerrell’s home.
There is no question that the police could have rebuked M cKerrell’s door-closing
tactic by resorting to the battering ram.
For these reasons, M cK errell’s reliance on Randolph is misplaced. He
never expressly objected to the search, according to the finding which the record
supports. Therefore, Randolph’s holding does not apply here.
-13-
3.
W e are now left where Randolph began, noting that the reasonableness of
the search is in significant part “a function of commonly held understanding about
the authority that co-inhabitants may exercise in ways that affect each other’s
interests.” Randolph, 126 S.Ct. at 1521. Here, that understanding amounts to the
following principle: a co-tenant’s consent to search a shared residence may be
valid as against an absent, nonconsenting tenant. Id.; United States v. M atlock,
415 U.S. 164, 170 (1974). See also Randolph 126 S.Ct. at 1527 (stating that a
nearby potential objector “loses out” when the police do not invite him to take
part in the conversation in which his co-tenant gives permission to search).
M rs. M cKerrell exercised authority over the common area that she allowed
the officers to search, and the district court did not clearly err by finding that
M cKerrell did not object to the search. In light of these facts, we find no error in
the district court’s conclusion that the officers complied with the Fourth
Amendment by relying on M rs. M cKerrell’s consent to search the residence.
B. Removing M cK errell from the Scene
M cKerrell also argues that the “evidence in this case indicates that removal
of the Defendant minutes after his arrest was for the sake of avoiding his protest
of a search.” Principal Brief of Defendant/Appellant at 12. M cKerrell relies on
the limitation imposed by Randolph that a search might be unconstitutional “[if
there is] evidence that the police have removed the potentially objecting tenant
-14-
from the entrance for the sake of avoiding a possible objection . . . .” Randolph,
126 S.Ct. at 1527. M cKerrell infers that this occurred here because “any police
officer would have had a design to search [M cKerrell’s] residence if the legal
opportunity developed” after receiving a tip that M cKerrell possessed guns and
drugs. Principal Brief of Defendant/Appellant at 12. In other words, M cKerrell
argues, the fact that the officers searched his residence demonstrates that the
officers planned to search the residence, and this search could occur only after
avoiding M cKerrell’s potential objection by removing him from the scene.
M cKerrell’s argument begs the question by leaping to its conclusion from
the innocuous inference that the police searched M cKerrell’s residence because
they planned to do so “if the legal opportunity developed,” id. Despite
M cKerrell’s speculations, we must ask only whether the evidence shows that the
officers removed M cKerrell from the scene to avoid his possible objection. And
on this point, there is no evidence that the police removed M cKerrell for this
reason.
The evidence does show that the police removed M cKerrell from the scene
and transported him to the police station to carry out a lawful arrest. But
M cKerrell has not directed our attention to anything suspicious about the
procedures that the police employed. Instead, his analysis essentially urges us to
accept his unjustified speculations and circumvent Randolph’s evidentiary
requirement. Randolph stated that there must be evidence that the police removed
-15-
the potentially objecting tenant from the scene to avoid his or her objection. See
Randolph, 126 S.Ct. at 1527. Since there is no evidence that the police prevented
M cK errell from objecting to the search when he w as at the scene, and since there
is no evidence that the officers removed M cKerrell for any reason other than
completing the arrest, we have no reason to invoke Randolph’s admonishment
that officers may not remove a defendant from the threshold to silence his or her
potential objection.
M cKerrell also argues that the police might invoke the justification that
they removed an arrestee to effect his or her arrest every time they arrest a
defendant— implying that accepting the officers’ justification would immunize
any post-arrest removal and consent search from Fourth Amendment challenge.
See Principal Brief of Defendant/Appellant at 12. But this observation does not
advance M cKerrell’s case. His argument wholly relies on the fact that the police
searched his residence, and therefore would have had the “design” to search, to
show that the police arrested and removed him to avoid his potential objection.
Accepting this speculation would come perilously close to adopting a rule that the
police must either invite a defendant into the threshold colloquy with the co-
tenant or otherwise suspend their normal arrest procedures and await a
defendant’s potential objection, however long it might take, before transporting
him or her to the station. R andolph does not support either approach. As
M cKerrell concedes, the Supreme Court in Randolph expressly rejected the notion
-16-
that the police may not remove a potential objector from the scene until they ask
for the potential objector’s consent to search. Randolph, 126 S.Ct. at 1527-28;
see also id. at 1527 (stating that “[t]here is no ready reason to believe that efforts
to invite a refusal would make a difference in many cases, whereas every co-
tenant consent case would turn into a test about the adequacy of the police’s
efforts to consult w ith a potential objector”).
Randolph did not upset the procedures that may be employed following an
arrest; it merely suggested that the Fourth Amendment might prohibit a search
when evidence shows that the police removed the defendant from the scene to
avoid his or her potential objection to the search. Although evidence that the
police used an arrest as a tool to avoid a possible objection might trigger
Randolph, the bare fact that the police arrested M cKerrell and brought him to the
police station does not support such a conclusion here.
III. C ON CLU SIO N
The record supports the finding that M cKerrell never expressly objected to
the search that he now challenges. Additionally, the police removed M cKerrell
from the scene to complete an arrest, not to stifle his possible objection to the
subsequent search, according to findings the record supports. The district court’s
decision to deny the motion to suppress is therefore
AFFIRM ED.
-17-
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