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[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 55, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1440-68", "author_id": 3362, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n_______________________________________\n )\nMELVIN PORTER, )\n )\n Plaintiff, )\n )\n v. ) Civil Action No. 04-1440 (RBW)\n )\nALONZO FULGHAM, ACTING )\nADMINISTRATOR, UNITED STATES )\nAGENCY FOR INTERNATIONAL )\nDEVELOPMENT, )\n )\n Defendant. )\n_______________________________________)\n\n MEMORANDUM OPINION\n\n Plaintiff Melvin Porter brings this action against his employer, the United States Agency\n\nfor International Development (\"Agency\"), under Title VII of the Civil Rights Act of 1964, 42\n\nU.S.C. §§ 2000e-3(a), 16(a) (2000) (\"Title VII\"), alleging that the Agency engaged in\n\ndiscriminatory employment practices against him based upon his race and gender, as well as\n\nretaliatory employment practices based on his participation in protected activity, i.e., his 2001\n\nlawsuit against the defendant for illegal employment practices under Title VII and related Equal\n\nEmployment Opportunity (\"EEO\") activity. This matter is now before the Court on the\n\ndefendant's motion for summary judgment, Defendant's Motion for Summary Judgment (\"Def.'s\n\nMot.\"), which the plaintiff opposes, Opposition of Plaintiff Melvin C. Porter to Defendant's\n\nMotion for Summary Judgment (\"Pl.'s Opp'n\"). 1 For the following reasons, the Court must\n\naward summary judgment to the Agency.\n\n\n1\n The defendant filed a reply to the plaintiff's opposition, Reply to Plaintiff's Opposition to\nDefendant's Motion for Summary Judgment (\"Def.'s Reply\"), which the Court has also considered in\nresolving this motion.\n\f I. BACKGROUND\n\n Viewing the evidence in the light most favorable to the plaintiff, the facts underlying this\n\nlawsuit are the following.\n\n The plaintiff, an African-American male, was employed in the Agency's Office of Human\n\nResources from 1985 to 1995, until being transferred to the Agency's Bureau of Policy and\n\nProgram Coordination where he was assigned when this case was filed. Second Amended\n\nComplaint (\"Second Am. Compl.\") ¶¶ 6, 8. The plaintiff joined the Agency in 1985 as a GS-13\n\ngrade level employee, and was elevated to the GS-14 grade level after two years; however, since\n\n1987, his pay grade level has not been increased. Id. ¶ 8.\n\n Since 1988, the plaintiff alleges that the Agency's acts of discrimination and retaliation\n\nhave stymied his advancement. And, between 1988 and 1991, the plaintiff filed four EEO\n\ncomplaints alleging that the Agency committed various discriminatory and retaliatory acts\n\nagainst him based upon his race and gender, and in response to his complaints against the\n\nAgency. Id. ¶¶ 9-10. The Agency settled the plaintiff's first round of complaints in 1992,\n\nawarding him monetary damages, a retroactive temporary promotion, training, and attorneys'\n\nfees. Id. ¶ 10. Following the settlement, the plaintiff filed three additional EEO complaints over\n\nthe next several years against the Agency, again alleging discrimination and retaliation. Id. ¶ 11.\n\nIn 1995, the Agency settled the plaintiff's second round of complaints, agreeing to transfer him\n\nfrom the Office of Human Resources to the Bureau for Policy and Program Coordination, as well\n\nas awarding him additional \"compensatory damages, a revised performance appraisal, a\n\nretroactive merit increase and performance award, and attorneys' fees.\" Id.\n\n\n\n\n 2\n\f In 2000, the plaintiff, frustrated that he still had not been promoted to the GS-15 level,\n\nsought additional relief in this Court. Id. ¶ 13; see generally Complaint (\"Compl.\"), Porter v.\n\nU.S. Agency for Int'l Dev. (\"Porter I\"), Civ. No. 00-1954 (D.D.C. Aug. 11, 2000); First\n\nAmended Complaint (\"Am. Compl.\"), Porter I (D.D.C. May 2, 2001). On June 5, 2002, a jury in\n\nthat case found for the plaintiff on two of the six counts of his amended complaint, specifically\n\nfinding that the defendant had engaged in \"retaliation in connection with the [d]efendant's\n\ndecision[s] not to select [the plaintiff]\" for two positions for which he applied in 1998. Jury\n\nVerdict at 2, Porter I (D.D.C. June 5, 2002). The plaintiff requested and the Court entered a\n\njudgment in his favor, which, among other things, forbid the Agency from engaging in any\n\nfurther retaliation against the plaintiff. Judgment at 2, Porter I (D.D.C. Feb. 3, 2003);\n\nMemorandum & Order at 1-2, Porter I (D.D.C. Feb. 3, 2003).\n\n After receiving the partially favorable jury verdict in Porter I and the issuances of an\n\naccompanying order from the Court which forbid the Agency from retaliating against him, on\n\nJune 24, 2003, in post-trial proceedings, the plaintiff filed a motion requesting that the Agency\n\nshow cause why it should not be found in violation of the Court's 2003 order enjoining the\n\nAgency from retaliating against him based on what the plaintiff characterized as \"two adverse\n\nemployment actions.\" Plaintiff’s Memorandum in Support of His Motion for an Order to Show\n\nCause Why Defendant Should Not be Held in Contempt and Authorizing Plaintiff to Take\n\nDiscovery (\"Pl.'s Show Cause Mem.\") at 2, Porter I (D.D.C. June 24, 2003). Namely, that the\n\nplaintiff claimed that the Agency's decision not to grant him a 2001 performance bonus and his\n\nreceipt of a \"Needs Improvement\" assessment for his 2002 performance amounted to retaliation.\n\nId. While the Court granted the motion to the extent that it compelled the Agency to respond,\n\n\n\n 3\n\fOrder, Porter I (D.D.C. June 27, 2003), after reviewing the evidentiary support offered by both\n\nparties, the Court discharged the show cause order on the merits and denied the plaintiff's request\n\nto conduct discovery with regards to the two purported adverse employment actions, Order ¶ 2,\n\nPorter I (D.D.C. Nov. 25, 2003); see also Order at 1, Porter I (D.D.C. May 25, 2005).\n\n Meanwhile, throughout the pendency of Porter I, the plaintiff continued to apply for GS-\n\n15 grade level positions for which he was not selected by the Agency. Second Am. Compl. ¶¶\n\n15-22. He now challenges those actions of the Agency alleging that he was denied the\n\npromotions for discriminatory and retaliatory reasons. Specifically, the plaintiff contends that\n\nseveral days after he initiated Porter I, he applied for a Supervisory Labor Relations Specialist\n\nposition at the GS-15 grade level. Id. ¶ 15. And in 2001, while Porter I was still pending, the\n\nplaintiff also applied for an Administrative Officer position at the GS-15 grade level, id. ¶ 18, as\n\nwell as a Deputy Chief position in the Personnel Operations Division at the GS-15 grade level,\n\nid. ¶ 21. In each case, the Agency did not select the plaintiff for the positions. Id. ¶¶ 15-22.\n\n On August 24, 2004, the plaintiff instituted this action under Title VII alleging that, with\n\nrespect to these non-selections, as well as other employment actions, the Agency engaged in\n\ndiscriminatory employment practices because of the plaintiff's race and gender, and retaliatory\n\nemployment practices due to the plaintiff's participation in a protected activity, i.e., his 2001\n\nlawsuit against the defendant and related EEO complaints. See Compl. ¶¶ 22-30; see also\n\nSecond Am. Compl. ¶¶ 29-63. In addition, the plaintiff asserts the following claims arising from\n\nfour additional incidents of alleged discrimination and retaliation: (1) the denial of a performance\n\n\n\n\n 4\n\fbonus award for the work he performed in 2001, despite his overall rating of \"Excellent,\" 2 id. ¶\n\n24; (2) his supervisor's \"Needs Improvement\" evaluation in February 2003, with respect to his\n\n2002 job performance, id. ¶ 25; (3) the mid-year \"borderline unacceptable\" oral assessment he\n\nreceived with respect to his 2003 job performance, id. ¶ 27; and (4) his receipt of an interim\n\n\"Unacceptable\" assessment in September 2004, with respect to his 2004 job performance, id. ¶\n\n28.\n\n On July 21, 2006, the defendant filed a motion for summary judgment pursuant to\n\nFederal Rule of Civil Procedure 56 stating that there are no genuine issues of material facts in\n\nthis case, and the defendant is entitled to judgment as a matter of law. Def.'s Mot. at 1.\n\nSpecifically, the defendant contends: (1) as to Counts I-VI of the second amended complaint, 3\n\nwhich challenge the Agency's promotion decisions, each claim should be dismissed because the\n\nindividuals selected were more qualified for the positions than was the plaintiff, Memorandum of\n\nPoints and Authorities in Support of Defendant's Motion for Summary Judgment (\"Def.'s\n\nMem.\") at 2; (2) Counts III, IV, VII, IX, and X should be dismissed because the plaintiff failed to\n\nexhaust his administrative remedies as to these claims, id. at 2, 4, 7-9, 22-24; (3) Counts VII-\n\nXIV, which challenge the Agency's \"denial of a bonus award and certain performance\n\nappraisals,\" should be dismissed because they are \"unmeritorious,\" and allege \"nothing more\n2\n The ratings scale ranks performances from one through five, with one representing\n\"Unacceptable,\" two representing \"Need Improvement,\" three representing \"Effective,\" four representing\n\"Excellent,\" and five representing \"Exceptional.\" Second Am. Compl. ¶¶ 25, 28.\n3\n The defendant contends that Counts I-VII of the plaintiff's Second Amended Complaint pertain to\nthe Agency's promotion decisions and the remaining claims, Counts VIII-XIV, pertain to the Agency's\n\"alleged denial of a bonus award and certain performance appraisals.\" Memorandum of Points and\nAuthorities in Support of Defendant's Motion for Summary Judgment (\"Def.'s Mem.\") at 1-2. It appears,\nhowever, that Count VII asserts a Title VII claim against the Agency for allegedly \"denying [the plaintiff]\na performance bonus award,\" Second Am. Compl. ¶ 45, and should be grouped with the latter category of\nclaims, not the former.\n\n\n 5\n\fthan personality disputes, complaints about management style or the normal trials and\n\ntribulations of any workplace,\" id. at 2; and (4) Counts VII-XIV are barred by res judicata, id. at\n\n3-4.\n\n In response, the plaintiff contends that summary judgment is improper because: (1) as to\n\neach claim he has made out a prima facie case that the defendant's actions amounted to unlawful\n\ndiscrimination or retaliation based on his race or gender, or in response to his prior protected\n\nactivity, and any non-discriminatory or non-retaliatory reasons offered by the Agency for its\n\ndecisions not to select him are merely pretextual, Pl.'s Opp'n at 14, 16, 22, 26, 33, 54; (2) the\n\nexistence of genuine issues of material fact regarding whether his performance rating was an\n\nadverse employment action precludes summary judgment, id. at 31; (3) the acts alleged in his\n\nCounts VII-XIV relate to events that occurred after the verdict in Porter I was rendered and\n\ntherefore are not barred by res judicata as they \"were not pled, litigated or adjudicated\" in Porter\n\nI, id. at 14; and (4) he has exhausted his administrative remedies with respect to Counts III, IV,\n\nand X, 4 id. at 52, 68.\n\n\n\n\n4\n The plaintiff does not contest the defendant's motion for summary judgment as to Counts VII, IX,\nXI, and XIII, and the portion of Count V which alleges racial discrimination. Pl.'s Opp'n at 2. As the\nbasis for why judgment is proper on these counts, the defendant argues that the plaintiff has failed to\nexhaust his administrative remedies as to these claims. Def.'s Mem. at 7-9, 22-24. Accordingly, the\nCourt will dismiss these claims under Federal Rule of Civil Procedure 12(b)(6) as failing to state claims\nupon which relief can be granted. See Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C. Cir.\n2004) (holding that the district court did not abuse its discretion by applying a \"straightforward\"\napplication of Local Rule 7(b) in granting as conceded the defendant's motion to dismiss when the\nplaintiffs failed to oppose it); Bancoult v. McNamara, 227 F. Supp. 2d 144, 149 (D.D.C. 2002) (\"[I]f the\nopposing party files a responsive memorandum, but fails to address certain arguments made by the\nmoving party, the court may treat those arguments as conceded, even when the result is dismissal of the\nentire case.\").\n\n\n 6\n\f II. STANDARD OF REVIEW\n\n To grant a motion for summary judgment under Rule 56(c), this Court must find that \"the\n\npleadings, the discovery and disclosure materials on file, and any affidavits show that there is no\n\ngenuine issue as to any material fact and that the movant is entitled to judgment as a matter of\n\nlaw.\" Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must\n\nview the evidence in the light most favorable to the non-moving party. Bayer v. U.S. Dep't of\n\nTreasury, 956 F.2d 330, 333 (D.C. Cir.1992). However, the non-moving party cannot rely on\n\n\"'mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are]\n\ngenuine issue[s] for trial.'\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation\n\nomitted) (some alterations in original). Under Rule 56(c), if a party fails to \"establish the\n\nexistence of an element essential to that party's case, and on which that party will bear the burden\n\nof proof at trial,\" summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322\n\n(1986). However, the party moving for summary judgment bears the burden of establishing the\n\nabsence of evidence that supports the non-moving party's case. Id. at 325.\n\n III. LEGAL ANALYSIS\n\nA. Exhaustion of Administrative Remedies\n\n A plaintiff who fails to exhaust the administrative remedies available to him in pursing a\n\nclaim of discrimination or retaliation, and who is not otherwise excused from doing so, may not\n\nseek relief from a United States district court on those claims under Title VII. Brown v. Gen.\n\nServs. Admin., 425 U.S. 820, 832-33 (1976); Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091\n\n(D.C. Cir. 1985) (\"a timely administrative charge is a prerequisite to initiation of a Title VII\n\naction in the District Court . . . [']subject to waiver, estoppel, and equitable tolling.'\" (quoting\n\n\n\n 7\n\fZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982))); see also 42 U.S.C. § 2000e-5(e)-\n\n(f) (setting forth the time limitations for filing charges with the Equal Employment Opportunity\n\nCommission or a United States district court); 29 C.F.R. § 1614.105(a)(1) (1992) (\"An aggrieved\n\nperson must initiate contact with a Counselor within 45 days of the date of the matter alleged to\n\nbe discriminatory or, in the case of personnel action, within 45 days of the effective date of the\n\naction.\"). The defendant contends that the plaintiff did not exhaust his remedies with respect\n\nCounts III, IV, and X. 5 Def.'s Mem. at 7, 22-23. The plaintiff counters that he has exhausted his\n\nadministrative remedies, and all of his claims are therefore properly before the Court. Pl.'s Opp'n\n\nat 52, 68.\n\n As to Counts III and IV, which relate to the plaintiff's claims concerning the Agency's\n\nselection of an Administrative Officer in its Global Bureau in May 2001, the defendant maintains\n\nthat the plaintiff \"first contacted the [A]gency concerning the Global Position selection on June\n\n13, 2001,\" a date which exceeded the forty-five day window within which he had to file a timely\n\nadministrative complaint. Def.'s Mem. at 9. In support of its argument, the defendant contends\n\nthat the forty-five day period commenced on April 25, 2001. Id. The plaintiff's second amended\n\ncomplaint, however, states that the alleged discrimination asserted in Counts III and IV occurred\n\nin \"May 2001,\" Second Am. Compl. ¶ 18, and the plaintiff's statement of undisputed material\n\nfacts clarifies that it was specifically on May 28, 2001, when the Agency selected another\n\ncandidate for the Administrative Officer position, Plaintiff's Rule 7.1(h) Statement in Response\n\n\n\n5\n Based on the plaintiff's concession to the grant of summary judgment on Counts VII, IX, XI, and\nXIII, as well as the portion of Count V, which alleges racial discrimination, note 4, supra, the Court will\nnot address the defendant's arguments regarding the plaintiff's alleged failure to exhaust his administrative\nremedies with respect to any of these Counts.\n\n\n 8\n\fto Defendant's Statement of Undisputed Material Facts (\"Pl.'s Facts Statement\") ¶ 186. Thus, the\n\nplaintiff contends that his administrative claim was filed timely.\n\n The question, therefore, is whether April 25, 2001, or May 28, 2001, was the date when\n\nthe 45-day time period began to run. The plaintiff argues that although the Administrative\n\nOfficer position at issue was classified as GS-15 on April 25, 2001, Pl.'s Facts Statement ¶ 185, it\n\nwas the awarding of that position to another candidate, and thus the denial of the position to the\n\nplaintiff on May 28, 2001, that amounted to discrimination and retaliation about which he is\n\ncomplaining, Second Am. Compl. ¶¶ 35, 38. Because the Court must consider the facts in the\n\nlight most favorable to the plaintiff, and the plaintiff contends that May 28, 2001, is the operative\n\ndate when the forty-five day time period commenced, the Court finds that the plaintiff's June 13,\n\n2001 administrative complaint was filed within the required time frame, and that the plaintiff has\n\ntherefore exhausted his administrative remedies with respect to Counts III and IV.\n\n As to Count X, which concerns the plaintiff's challenge to his 2002 \"Needs\n\nImprovement\" performance assessment, the defendant contends that while the plaintiff initially\n\nsuspected that he was the subject of retaliation in early 2002, he did not file an administrative\n\ncomplaint until October 4, 2002. Def.'s Mem. at 23. The plaintiff seemingly contends that \"[o]n\n\nFebruary 21, 2003, the Agency discriminated against [him]\" when it provided him with the 2002\n\n\"Needs Improvement\" performance evaluation. Second Am. Compl. ¶ 25. This evaluation was\n\nrendered after the plaintiff filed his November 2002 EEO complaint against the Agency based on\n\nhis supervisor's refusal to award him a bonus. Pl.'s Facts Statement ¶ 70. Therefore, while that\n\nEEO complaint did not contest his 2002 \"Needs Improvement\" performance rating, Pl.'s Facts\n\nStatement, Exhibit (\"Ex.\") 32 (Individual Complaint Form for Employment Discrimination) at 2,\n\n\n\n 9\n\fthe plaintiff maintains that \"in early March 2003, [he] contacted an EEO counselor regarding\n\n[his] claim [concerning his 2002 'Needs Improvement' performance rating]\" and sought to amend\n\nthe November 2002 complaint to include that allegation, Pl.'s Opp'n at 52; Pl.'s Facts Statement,\n\nEx. 49 (E-mail from Melvin Porter to David Grim (Mar. 10, 2003)). Specifically, the plaintiff\n\nstates that \"[o]n March 10, 2003, [he] e-mailed an EEO Counselor, asking that his challenge to\n\nthe 2002 Needs Improvement Assessment be added to his challenge of the bonus denial, which\n\nhad been pending since October 2002 [sic].\" Pl.'s Opp'n at 52. In addition, the plaintiff\n\nmaintains that the questionnaire provided to the plaintiff's supervisor regarding the plaintiff's\n\nNovember 22, 2002 administrative complaint included questions concerning his 2002 Needs\n\nImprovement Assessment. Pl.'s Facts Statement, Ex. 50 (Affidavit of Barbara Turner) at 1.\n\nTherefore, in reading the facts in the light most favorable to the plaintiff, the Court must find that\n\nthe plaintiff has not failed to exhaust his remedies with respect to his 2002 Needs Improvement\n\nassessment, as alleged in Count X of his second amended complaint, because he constructively\n\namended his November 2002 EEO complaint to include a claim with respect to the 2002\n\nassessment. 6\n\n\n\n\n6\n In addition, based on the Agency's investigation of the plaintiff's complaints, Pl.'s Facts\nStatement, Ex. 50 (Affidavit of Barbara Turner) at 1, and in the absence of any evidence in the record\nthat, in response to the plaintiff's seeking to amend his November 2002 EEO complaint with the new\ninformation, the Agency rejected the plaintiff's amendment or informed him that the would need to file a\nnew complaint, see Pl.'s Opp'n at 52; Pl.'s Facts Statement, Ex. 49 (E-mail from Melvin Porter to David\nGrim (Mar. 10, 2003)), the Court cannot find that the Agency can now credibly argue that the plaintiff's\nfailure to file a formal administrative complaint precludes him from litigating these matters. See Brown\nv. Marsh, 777 F.2d 8, 16 (D.C. Cir. 1985) (finding the doctrine of equitable estoppel prevented the\ndefendant from arguing that the plaintiff's \"failure to timely consult an EEO counselor\" barred the\nplaintiff's Title VII suit because \"[t]he Army . . . led [the plaintiff] to believe that it was considering and\ninvestigating his complaints from the outset of this matter\").\n\n\n\n 10\n\fB. Res Judicata\n\n \"Res judicata bars a claim when there has been a final judgment on the merits in a prior\n\nsuit involving the same parties or their privies and the same cause of action.\" Polsby v.\n\nThompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002) (citing I.A.M. Nat'l Pension Fund v. Indus.\n\nGear Mfg. Co., 723 F.2d 944, 946-47 (D.C. Cir. 1983)). The doctrine precludes relitigation of\n\nclaims that are identical to the claims that were raised and addressed previously or could have\n\nbeen raised in the earlier lawsuit, as well as \"'issue[s] of fact or law [which were] actually\n\nlitigated and resolved in a valid court determination essential to the prior judgment,' even if the\n\nissue recurs in the context of a different claim.\" Taylor v. Sturgell, __ U.S. __, __, 128 S. Ct.\n\n2161, 2171 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742 (2001)). \"By 'preclud[ing]\n\nparties from contesting matters that they have had a full and fair opportunity to litigate,' [the\n\ndoctrines of issue and claim preclusion] protect against 'the expense and vexation attending\n\nmultiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by\n\nminimizing the possibility of inconsistent decisions.'\" Id. (quoting Montana v. United States,\n\n440 U.S. 147, 153-54 (1979)) (some alterations in original).\n\n \"The four factors that must exist for res judicata to apply are (1) an identity of parties in\n\nboth suits; (2) a judgment rendered by a court of competent jurisdiction; (3) a final judgment on\n\nthe merits; and (4) the same cause of action in both suits.\" Polsby, 201 F. Supp. 2d at 48 (citing,\n\namong others, U.S. Indus., Inc. v. Blake Constr. Co., 765 F.2d 195, 205 n. 21 (D.C. Cir. 1985)).\n\n\"[T]he doctrine of res judicata applies to all the parties' rights regarding matters that could have\n\nbeen litigated as well as those matters that were actually litigated.\" Id. at 48 (citing I.A.M. Nat'l\n\nPension Fund, 723 F.2d at 947).\n\n\n\n 11\n\f The defendant contends that it is entitled to judgment as a matter of law on Counts VIII,\n\nX, XII, and XIV of the plaintiff's second amended complaint (i.e. the plaintiff's retaliation claims\n\nwith respect to his 2001 bonus, his 2002 year-end performance assessment, his 2003 mid-year\n\nperformance assessment, and his 2004 interim performance assessment) because the allegations\n\ncontained within these Counts were litigated in Porter I. 7 Def.'s Mem. at 21-22. The defendant\n\nmaintains that the member of this Court who presided over Porter I rendered a final judgment on\n\nthose matters in post-judgment proceedings. Id. The plaintiff responds that Porter I \"did not\n\nencompass any of the claims asserted in this case,\" and because the allegations of retaliation that\n\nhe makes here \"were not pled, litigated, or adjudicated by judge or jury in the earlier case,\" res\n\njudicata does not bar him from bringing them in this action. Pl.'s Opp'n at 15. The Court agrees\n\nwith the defendant as to Counts VIII and X, but disagrees that res judicata bars Counts XII and\n\nXIV.\n\n Two preliminary matters are beyond dispute: the parties in this lawsuit are identical to\n\nthose in Porter I, and this Court, a court of competent jurisdiction, presided in that litigation,\n\nwhich was resolved by a final judgment on the merits. See, e.g., Porter I, 293 F. Supp. 2d 152,\n\n158 (D.D.C. 2003) (awarding attorneys' fees). Therefore, the only issue that remains as to\n\nwhether the claims being challenged on res judicata grounds are barred from consideration in this\n\n\n\n\n7\n The Court takes judicial notice of the court record in Porter I, as well as those excerpts extracted\nfrom the parties' filings in that case. See Fed. R. Evid. 201(b)-(c) (\"A court may take judicial notice,\nwhether requested or not\" of any fact that is \"not subject to reasonable dispute in that it is either (1)\ngenerally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready\ndetermination by resort to sources whose accuracy cannot reasonably be questioned.\"); see, e.g., Coleman\nv. Burnett, 477 F.2d 1187, 1198 (D.C. Cir. 1973) (wherein the Circuit Court \"[e]xercis[ed] [its] power to\njudicially notice proceedings in related cases\").\n\n\n 12\n\fcase is whether the claims that the plaintiff now advances were among those claims on which the\n\nCourt in Porter I rendered a final judgment upon the merits.\n\n Without running afoul of the doctrine of res judicata, there is no question that the plaintiff\n\nmay advance any retaliation claims which arose from events subsequent to the Court's judgment\n\nin Porter I, so long as those claims were not covered by the factual allegations upon which the\n\njudgment was based. See Joshi v. Prof'l Health Servs., Inc., 817 F.2d 877, 880-81 (D.C. Cir.\n\n1987). But that is not what the plaintiff attempts to do here. Rather, the plaintiff now contends\n\nthat the Agency committed acts of discrimination and retaliation against him during the\n\npendency of Porter I, which include the same acts which served as the basis for the plaintiff's\n\npost-judgment motion in Porter I alleging that the Agency violated the Court's order enjoining it\n\nfrom further retaliation against the plaintiff. Pl.'s Show Cause Mem. at 1-2, Porter I (D.D.C.\n\nJune 24, 2003). In those post-judgment proceedings the parties briefed for the Court and\n\nlitigated whether the Agency's acts of (1) denying the plaintiff a 2001 bonus and (2) providing\n\nhim with a 2002 \"Needs Improvement\" assessment constituted retaliation. Compare id. at 2,\n\nwith Second Am. Compl. ¶¶ 44-53. The question therefore becomes whether the Court's post-\n\njudgment orders amounted to a final judgment on these issues.\n\n Part of the relief that the plaintiff sought in Porter I included injunctive relief forbidding\n\nthe Agency from retaliating against him. Judgment at 2, Porter I (D.D.C. Feb. 3, 2003);\n\nMemorandum at 1-2, Porter I (D.D.C. Feb. 3, 2003). The Court awarded the plaintiff this relief\n\nfollowing a favorable jury verdict on two counts of his complaint. Judgment at 2, Porter I\n\n(D.D.C. Feb. 3, 2003). Seeking to enforce this injunctive relief, the plaintiff fully briefed and\n\noffered documentary evidence to support his allegations that the Agency retaliated against him\n\n\n\n 13\n\fwhen it denied him a 2001 performance bonus and gave him a \"Needs Improvement\"\n\nperformance rating for 2002. Pl.'s Show Cause Mem. at 1-2, Porter I (D.D.C. June 24, 2003).\n\nThe Agency opposed the motion and offered voluminous evidentiary support of its own position.\n\nSee Defendant's Response to Order to Show Cause at 1, Porter I (D.D.C. Sept. 5, 2003). Upon\n\nconsidering both parties' evidence, the Court discharged the plaintiff's show cause motion on the\n\ngrounds that his allegations did not meet the legal standard necessary to establish a retaliation\n\nclaim. Memorandum & Order ¶¶ 1-2, Porter I (D.D.C. Nov. 25, 2003); see also Order at 1-2,\n\nPorter I (D.D.C. May 25, 2005). The Court also denied the plaintiff's request to conduct\n\nadditional discovery concerning the alleged retaliation. Id. Specifically, that member of this\n\nCourt stated:\n\n I find no evidence of contempt in the record before me. [The\n plaintiff] was not entitled to a performance award for 2001 when\n only 35% of those eligible were given such awards (and when 17\n of 25 employees who had received \"excellent\" performance ratings\n did not receive awards). Nor was he entitled to an \"excellent\"\n performance rating in 2002, from a new supervisor, working in a\n changed organization, especially when he \"actively and\n deliberatively avoided supervisory feedback.\"\n\nMemorandum & Order ¶ 2, Porter I (D.D.C. Nov. 25, 2003). In a second order, which addressed\n\nthe plaintiff's request for permission to conduct discovery regarding the alleged retaliation, the\n\nsame member of this Court reiterated:\n\n The most startling assertion of the motion – that \"Barbara Turner\n has brazenly approached Agency employees in an attempt to\n obtain information that Ms. Turner could – as described in her own\n words – 'use against' Mr. Porter,\" . . . turns out to be supported\n only by Mr. Porter's declaration about something said to him about\n something Ms. Turner allegedly said nearly two years ago. What\n Mr. Porter calls \"fresh evidence of the Agency's retaliatory\n motivations and actions,\" . . . is also uncorroborated hearsay . . .\n The injunction [prohibiting the Agency from retaliating against the\n plaintiff] does not make [the plaintiff's] position a sinecure, or\n\n 14\n\f guarantee that he will receive superior performance evaluations or\n promotions, or forbid anyone to say anything negative about him.\n\nOrder at 1-2, Porter I (D.D.C. May 25, 2005).\n\n Therefore, after having reviewed the record and the docket entries of the previous lawsuit\n\nbrought by this plaintiff, this Court is convinced that the plaintiff received the equivalent of a\n\nfinal judgment on the merits of his retaliation claims concerning the 2001 bonus and his 2002\n\nperformance review. The record in Porter I reflects that the parties fully briefed and provided\n\nevidentiary support on the issue of whether those acts constituted retaliation, and a member of\n\nthis Court weighed the factual evidence proffered and rendered a judgment on the merits of those\n\nmatters. The plaintiff having been afforded the opportunity to litigate his retaliations claims as to\n\nthe 2001 bonus and 2002 performance evaluation on the merits in his 2000 lawsuit against the\n\ndefendant, and having received the equivalent of a final judgment on the merits rendered by a\n\ncourt of competent jurisdiction on these same claims he seeks to pursue in this case, the Court\n\nfinds that Counts VIII and X are barred by the doctrine of res judicata. 8 However, because the\n\nplaintiff has not yet had the opportunity to pursue his claims of retaliation as to the later\n\nperformance assessments – his 2003 mid-year performance assessment as alleged in Count XII,\n\nand his 2004 interim performance assessment as alleged in Count XIV – the Court cannot find\n\nthat those claims are barred by res judicata.\n\n\n\n\n8\n The plaintiff had his one bite of the apple as to these claims. The plaintiff's only avenue for relief\nas to the Court's discharge of his show cause motion was to appeal, just as the plaintiff appealed other\npost-judgment orders in his earlier case. See Notice of Appeal, Porter I (D.D.C. Feb. 10, 2004). The\nplaintiff does not get to re-assert his claims in a second lawsuit simply because he disagrees with the\nCourt's finding that those acts did not amount to retaliation.\n\n\n 15\n\fC. Discrimination Based on Race and Gender\n\n Title VII provides that “personnel actions affecting employees . . . in executive agencies\n\n. . . shall be made free from any discrimination based on race . . . [or] sex.” 42 U.S.C. § 2000e-\n\n16(a). It also provides:\n\n It shall be an unlawful employment practice for an employer to\n discriminate against any of his employees . . . because [the\n employee] has opposed any practice made an unlawful\n employment practice by this subchapter, or because he has made a\n charge, testified, assisted, or participated in any manner in an\n investigation, proceeding, or hearing under this subchapter.\n\n42 U.S.C. § 2000e-3(a).\n\n Title VII is not absolute, however. The Supreme Court has stated:\n\n Congress did not intend by Title VII, however, to guarantee a job\n to every person regardless of qualifications. In short, the Act does\n not command that any person be hired simply because he was\n formerly the subject of discrimination, or because he is a member\n of a minority group. Discriminatory preference for any group,\n minority or majority, is precisely and only what Congress has\n proscribed.\n\nMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) (quoting Griggs v. Duke Power\n\nCo., 401 U.S. 424, 430-31 (1971)); see Valentino v. U.S. Postal Serv., 674 F.2d 56, 66-67 (D.C.\n\nCir. 1982) (applying this rationale to claims of discriminatory refusal to promote under Title\n\nVII). Similarly, the District of Columbia Circuit has repeatedly stated that Title VII does not,\n\nand was not intended to, transform a court into “a super-personnel department that reexamines an\n\nentity's business decisions.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal\n\nquotation marks and citations omitted). Indeed, “Title VII liability cannot rest solely upon a\n\njudge's determination that an employer [has] misjudged the relative qualifications of admittedly\n\nqualified candidates.” Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183 (D.C. Cir.\n\n\n 16\n\f1996) (citation omitted). And, “[s]hort of finding that the employer's stated reason [for its\n\nselection decision] was [merely] a pretext [for unlawful discrimination,] . . . the [C]ourt must\n\nrespect the employer's unfettered discretion to choose among qualified candidates.” Id. (citations\n\nomitted). In this regard, “[t]he ultimate burden of persuading the trier of fact that the [employer]\n\nintentionally discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v.\n\nSanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks and\n\ncitation omitted).\n\n Where, as here, the plaintiff has not proffered any direct evidence of intentional\n\ndiscrimination, his Title VII race and gender discrimination claims under Title VII are evaluated\n\nunder the burden-shifting framework first articulated in McDonnell Douglas. 9 411 U.S. at 802;\n\nsee also Porter v. Natsios, 414 F.3d 13, 17-18 (D.C. Cir. 2005). Under this framework, the\n\nplaintiff bears the initial burden of \"establishing a prima facie case of . . . discrimination\" by a\n\npreponderance of the evidence. McDonnell Douglas, 411 U.S. at 802. To do so, the Supreme\n\nCourt stated that the plaintiff must show\n\n (i) that he belongs to a racial minority; (ii) that he applied and was\n qualified for a job for which the employer was seeking applicants;\n (iii) that, despite his qualifications, he was rejected; and (iv) that,\n after his rejection, the position remained open and the employer\n continued to seek applicants from persons of complainant's\n qualifications.\n\n\n\n\n9\n “Direct evidence of discrimination is evidence that, if believed by the fact finder, proves the\nparticular fact in question without any need for inference. Such evidence includes any statement or\nwritten document showing a discriminatory motive on its face.” Lemmons v. Georgetown Univ. Hosp.,\n431 F. Supp. 2d 76, 86 (D.D.C. 2006) (Walton, J.) (internal quotation marks, citations, and alterations\nomitted) (emphases in original). The plaintiff does not argue, nor could he, that the factual record in this\ncase contains any such direct evidence of discrimination.\n\n\n 17\n\fId. However, where the plaintiff, as here, claims that his federal employer failed to promote him,\n\nthe McDonnell Douglas test has been modified to require that\n\n to make out a prima facie case the plaintiff must show that [he]\n belongs to a protected group, that [he] was qualified for and\n applied for a promotion, that [he] was considered for and denied\n the promotion, and that other employees of similar qualifications\n who were not members of the protected group were indeed\n promoted at the time the plaintiff's request for promotion was\n denied.\n\nBundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981) (citation omitted).\n\n \"If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the\n\ndefendant employer to produce evidence that the plaintiff was rejected, or someone else was\n\npreferred, for a legitimate, nondiscriminatory reason.\" Jackson v. Gonzales, 496 F.3d 703, 707\n\n(D.C. Cir. 2007) (quoting Reeves, 530 U.S. at 142 (internal quotation marks omitted)). Once\n\n\"the employer offers a non-discriminatory justification for its actions, the McDonnell Douglas\n\nframework falls away,\" Vickers v. Powell, 493 F.3d 186, 195 (D.C. Cir. 2007), and the burden\n\nshifts back to the plaintiff to show that the employer's proffered reason is merely \"pretextual,\"\n\nand designed to \"shield[] discriminatory motives,\" Jackson, 496 F.3d at 707 (citing Murray v.\n\nGilmore, 406 F.3d 708, 713 (D.C. Cir. 2005)).\n\n When making promotions decisions, an \"employer has discretion to choose among\n\nequally qualified candidates, provided the decision is not based upon unlawful criteria.\" Tex.\n\nDep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Thus, \"[i]n order to justify an\n\ninference of discrimination, the qualifications gap [between the candidates] must be great enough\n\nto be inherently indicative of discrimination,\" i.e., there must be \"a 'wide and inexplicable gulf'\n\nbetween candidates.\" Holcomb, 433 F.3d at 897 (quoting Lathram v. Snow, 336 F.3d 1085, 1091\n\n\n\n 18\n\f(D.C. Cir. 2003)). So, when the qualifications are close, the Court must give the Agency the\n\nbenefit of the doubt as to its choice among similarly qualified candidates. Id. (\"'In a close case, a\n\nreasonable juror would usually assume that the employer is more capable of assessing the\n\nsignificance of small differences in the qualifications of the candidates, or that the employer\n\nsimply made a judgment call.'\") (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C.\n\nCir. 1998) (en banc)).\n\n Here, the plaintiff, an African-American male, alleges that the defendant committed three\n\nacts of discrimination: (1) \"by denying him a promotion on the basis of his race to the position of\n\nGS-15 Supervisory Labor Relations Specialist,\" Second Am. Compl. ¶ 30 (Count I); (2) \"by\n\ndenying him a promotion on the basis of his race to the position of GS-15 Administrative Officer\n\nwithin the Agency's Global Bureau,\" id. ¶ 35 (Count III); and (3) \"by denying him a promotion\n\non the basis of his gender . . . to the position of GS-15 Deputy Chief within the Agency's\n\nPersonnel Operations Division,\" id. ¶ 40 (Count V, as amended by the plaintiff's consent to\n\npartial summary judgment, see Pl.'s Opp'n at 2). The Court will address each non-selection in\n\nturn.\n\n 1. The Supervisory Labor Relations Specialist Position\n\n In Count I of his second amended complaint, the plaintiff alleges several days after he\n\ninitiated Porter I, he applied for a GS-15 grade level Supervisory Labor Relations Specialist\n\nposition. Second Am. Compl. ¶ 15. The plaintiff was not interviewed for the position, and he\n\nmaintains that the Agency discriminated against him when it filled the position with another\n\ncandidate, a Caucasian male, who the plaintiff alleges was not as qualified as he was for the\n\nposition. Id. ¶¶ 16-17. The plaintiff maintains that when the selection decision was made he had\n\n\n\n 19\n\fmore \"management experience,\" \"extensive supervisory training,\" and more experience working\n\nwithin the Agency than did the successful candidate. Id. ¶ 17.\n\n The defendant contends that the plaintiff cannot maintain a Title VII discrimination claim\n\nas to the Supervisory Labor Relations Specialist position because he cannot demonstrate that he\n\nwas better qualified for the position that required \"[k]nowledge of the laws, regulations, theories,\n\nprinciples, practices, and techniques of employee and labor relations,\" \"discussions and\n\nnegotiations with unions,\" and \"represent[ation of] the Agency in negotiations and before\n\nadministrative tribunals and to draft legal documents,\" skills possessed by the attorney who was\n\nultimately selected. Def.'s Mem. at 14-15 (internal quotation marks omitted); see also Pl.'s Facts\n\nStatement, Ex. 61 (U.S. Agency for International Development Vacancy Announcement\n\n(\"Supervisory Labor Relations Specialist Vacancy Announcement\")) at 1. The defendant\n\ntherefore maintains that the successful candidate was \"significantly better qualified than [the\n\nplaintiff]\" because the plaintiff, while experienced within the Agency and possessing supervisory\n\nexperience, \"was involved with negotiating only one contract or agreement during his career,\"\n\n\"wrote only one appeal, . . . ha[d] never written a final agency decision during his career\" or \"an\n\nagency-level Foreign Service decision,\" and had never \"appeared before the Foreign Service\n\nGrievance Board,\" all which were relevant qualifications for the position and expected tasks of\n\nthe person selected for the position. Def.'s Mem. at 15-16.\n\n As to his claim of racial discrimination related to the Supervisory Labor Relations\n\nSpecialist position, the plaintiff has established \"that [he] belongs to a protected group, [a racial\n\nminority,] that [he] . . . applied for a promotion, . . . and that [another] employee[] of similar\n\nqualifications who w[as] not [a] member[] of the protected group w[as] indeed promoted at the\n\n\n\n 20\n\ftime the plaintiff's request for promotion was denied.\" Bundy, 641 F.2d at 951 (citation\n\nomitted). The remaining factors that the plaintiff must also establish to make out a prima facie\n\ncase are \"that []he was qualified for . . . [and] considered for . . . the promotion.\" Id.\n\n It is questionable whether the plaintiff has shown that he was qualified for the position.\n\nWhile the plaintiff has an extensive professional background, including supervisory experience\n\nand educational training in business administration, Pl.'s Facts Statement, Ex. 2 (Resume of\n\nMelvin C. Porter), which are some of the qualifications that the Agency desired for the\n\nSupervisory Labor Relations Specialist position, and while the position did not require that the\n\ncandidate have a law degree, Pl.'s Facts Statement, Ex. 61 (Supervisory Labor Relations\n\nSpecialist Vacancy Announcement), many of the job functions of the position identified in the\n\nvacancy announcement involve law related tasks, skills which the plaintiff had little or no\n\nexperience performing, id. However, despite the fact that the job description sought a candidate\n\nwith some skills the plaintiff did not possess, the Court is sensitive to the minimal threshold a\n\nplaintiff must satisfy to establish a prima facie case of discrimination, and will therefore assume\n\nthat the plaintiff has met that threshold. Burdine, 450 U.S. at 253 (“The burden of establishing a\n\nprima facie case of disparate treatment is not onerous.”).\n\n The plaintiff having established his prima facie case, the Court must consider next the\n\nAgency's proffered reason why it hired a Caucasian candidate rather than the plaintiff. The\n\nAgency asserts that it made its selection because the selectee was an attorney who \"had practiced\n\nlaw for approximately ten years prior to his selection for the [position],\" held a law degree from\n\na prestigious law school, Def.'s Mem. at 15, and had experience performing legally related\n\nfunctions required of the position, see Pl.'s Facts Statement, Ex. 61 (Supervisory Labor Relations\n\n\n\n 21\n\fSpecialist Vacancy Announcement). As to why the Agency did not select the plaintiff, it asserts\n\nthat the plaintiff did not have a legal degree, had drafted only one appeal, never prepared a final\n\nagency decision during his career or wrote an agency-level Foreign Service decision, and had\n\nnever represented the Agency before the Foreign Service Grievance Board, all tasks which he\n\nwould be required to do if he had been selected for the position. Def.'s Mem. at 15-16. In short,\n\nthe Agency represents that it hired the other candidate because he had more experience doing the\n\ntype of work called for by the position. Id. The Court finds this explanation qualifies as a\n\nlawful, nondiscriminatory rationale for the Agency's decision not to select the plaintiff.\n\n The burden therefore shifts back to the plaintiff to demonstrate that the Agency's\n\nrationale for its decision was a mere pretext, concealing a true discriminatory motive, Jackson,\n\n496 F.3d at 707, which the plaintiff has not satisfied. In his attempt to meet this burden, the\n\nplaintiff contends that the vacancy announcement was drafted in a manner that deliberately\n\n\"disadvantage[d]\" him, because before it was revised, a previous version of the announcement\n\nhad a greater focus on supervisory skill, 10 and the Agency \"selected a candidate with little to no\n\nsupervisory experience for a supervisory position.\" Pl.'s Opp'n at 54. The evidence in the record\n\nsimply does not demonstrate that the plaintiff's experience rendered him better qualified than the\n\ncandidate hired by the Agency, or that the Agency's vacancy announcement for the position\n\nmisrepresented the skills actually required of the position. The position required that the selectee\n\n\n10\n The plaintiff makes a great deal about the title of the position, including the descriptive term\n\"Supervisory,\" which in the plaintiff's view indicates greater need for supervisory skills over other skills.\nPl.'s Opp'n at 56. But, as the description for the position explains, the Agency was also looking for more\nthan just a supervisor in filling the position, see Pl.'s Facts Statement, Ex. 61 (Supervisory Labor\nRelations Specialist Vacancy Announcement), as it was looking for someone to manage labor relations;\nthe same rationale it gave for selecting the candidate it choose. Def.'s Mem. at 15-16. The Court\ntherefore cannot find that the position's title was determinative of the type of skills that the Agency\nneeded and gives rise to an inference of impropriety as the plaintiff urges.\n\n 22\n\fpossess the “[a]bility to effectively communicate orally and interact with coworkers,”\n\n“effectively communicate in writing,” “effectively meet and deal with others,” “[have]\n\n[k]nowledge of the laws, regulations, theories, principles, practices, and techniques of employee\n\nand labor relations,” and “negotiate within the collective bargaining process.” Def.'s Mem., Ex.\n\n6 (Supervisory Labor Relations Specialist Vacancy Notice) at 2; see also Def.'s Mem., Ex. 29\n\n(Supervisory Recertification). These skills were required because the selectee would serve as an\n\nadvisor in regards to the Agency's labor management obligation, \"[c]onduct[] discussions and\n\nnegotiations with unions representing Agency employees and prepare[] agreements, . . .\n\n[r]epresent[] the Agency before the Federal Labor Relations Authority [and] the Foreign Service\n\nLabor Relations Board, . . . [and] [r]ender final Agency decisions.\" Def.'s Mem., Ex. 6\n\n(Supervisory Labor Relations Specialist Vacancy Notice) at 1; see also Def.'s Mem., Ex. 29\n\n(Supervisory Recertification). It is no wonder then that the Agency hired someone with more\n\nlabor relations and legal experience than the plaintiff, who is not an attorney and had little to no\n\nexperience in these areas. See Pl.'s Opp'n at 59. In essence, there was no \"'wide and inexplicable\n\ngulf' between [the] candidates\" favoring the plaintiff. See Holcomb, 433 F.3d at 897 (citation\n\nomitted). The Court therefore has no basis to infer that the Agency's reasoning for the plaintiff's\n\nnon-selection was a pretext for an improper discriminatory motive.\n\n The plaintiff also argues that the Agency's selecting official, Marilyn Marton, \"exercised\n\nher unlawful animus towards\" him through his non-selection. Pl.'s Opp'n at 54-55. Yet, the\n\nplaintiff offers no evidence from which the Court can find that his claim can survive summary\n\njudgment on that basis. Specifically, the plaintiff has not shown how it can be inferred that his\n\nrace played any role in the Agency's decision. Simply, the plaintiff has shown nothing more than\n\n\n\n 23\n\fwhen the Agency made its selection for the Supervisory Labor Relations position that it\n\nexercised its \"discretion to choose among [presumably] equally qualified candidates,\" which it is\n\nlawfully permitted to do. Burdine, 450 U.S. at 259. Therefore, having failed to meet his burden\n\nof demonstrating that the Agency's selection of another candidate for the Supervisory Labor\n\nRelations Specialist position was discriminatory based on his race, the Court will award\n\nsummary judgment to the Agency on Count I of the plaintiff's second amended complaint.\n\n 2. The Administrative Officer Position\n\n In Count III of his second amended complaint, the plaintiff alleges that in 2001, while\n\nPorter I was still pending, the Agency laterally transferred a Caucasian into the role of a GS-15\n\ngrade level Administrative Officer, a position for which the plaintiff alleges that he was more\n\nqualified. Second Am. Compl. ¶¶ 18-20. The Agency did not open the position to competition,\n\nid. ¶ 19, and the plaintiff contends that because he never \"ha[d] [the] opportunity to express his\n\ninterest in [that] position\" or compete for it, although he was qualified, that the lateral transfer\n\nwas \"illicit\" and amounted to racial discrimination against him. Pl.'s Opp'n at 63.\n\n The Agency maintains that it made the transfer because the individual who was\n\nreassigned was \"'absolutely outstanding'\" based on \"'the quality of his thinking, how articulate he\n\nwas, how broad based [he was] in his thinking, . . . [as a] teacher and mentor . . . to the staff,'\"\n\nand he had a \"long and distinguished career in the personnel field,\" including his publications\n\nand \"college-level teaching experience,\" qualifications which the plaintiff did not possess. Def.'s\n\nMem. at 13-14 (citation omitted).\n\n As to proving his prima facie claim of racial discrimination with respect to the\n\nAdministrative Officer position, the plaintiff has established that he is a member of a racial\n\n\n\n 24\n\fminority, a protected group, who desired a job that the Agency filled through the lateral transfer\n\nof another individual without utilizing the competitive process, which would have allowed him\n\nto compete for the position. While there is a question whether this position amounted to a\n\n\"promotion\" for the candidate selected for the position, see Bundy, 641 F.2d at 951 (requiring\n\nthat the plaintiff show \"that other employees of similar qualifications who were not members of\n\nthe protected group were indeed promoted at the time the plaintiff's request for promotion was\n\ndenied\" (emphasis added) (citation omitted)), the Court will presume that the plaintiff has\n\nshouldered his burden of establishing a prima facie case of racial discrimination as to the\n\nAdministrative Officer position. See McDonnell Douglas, 411 U.S. at 802.\n\n The Court must next examine the Agency's proffered rationale for why it made the\n\nselection decision it did. As noted, the Agency maintains that its transfer decision was based on\n\nthe selectee's \"'absolutely outstanding'\" credentials, including a \"long and distinguished career in\n\nthe personnel field,\" his publications, and \"college-level teaching experience.\" Def.'s Mem. at\n\n13-14. The Agency also points to the fact that the transferee was already a grade level higher\n\nthan the plaintiff when the transfer into the Administrative Officer position was made, making it\n\na lateral transfer. Id. at 13. In essence, the Agency argues that no one was denied a promotion.\n\nThe Court finds that the Agency's explanation amounts to a legitimate, non-discriminatory\n\nrationale for its decision.\n\n In response, the plaintiff represents he was better qualified for the position than the\n\ntransferred candidate based on his \"six (6) years of experience as an Administrative Officer at the\n\nGS-14 grade level,\" Second Am. Compl. ¶ 20, and \"the GS-15 Administrative Officer position\n\nwas a natural progression for a veteran GS-14 Administrative Officer such as [he was],\" Pl.'s\n\n\n\n 25\n\fOpp'n at 65. These unsupported self-serving allegations alone are insufficient to carry the\n\nplaintiff's burden of showing that the Agency's decision was a pretext for racial discrimination.\n\nThe transferred candidate had served at GS-15 grade level for longer than the plaintiff had even\n\nbeen assigned to the Global Bureau. Def.'s Mem. at 13 (citing Second Am. Compl. ¶ 20). The\n\nplaintiff's greater experience serving as an Administrative Officer at a lower grade level than the\n\ntransferred candidate is inadequate to demonstrate that the Agency concealed its true motive of\n\nmaking its decision not to open the position up to a competitive selection process based on the\n\nracial animus against him. The Agency was permitted to laterally transfer an employee pursuant\n\nto its internal policy 11 and the plaintiff has failed to produce any evidence to disturb the apparent\n\npropriety of that decision.\n\n Accordingly, because the plaintiff has not rebutted the Agency's proffered legitimate,\n\nnon-discriminatory reason for its decision based on the evidence in the record, the Court must\n\naward summary judgment to the defendant on Count III of the amended complaint.\n\n\n\n\n11\n The Agency policy is called the Automated Directives System (\"ADS\"). Def.'s Mem. at 10 n.3.\nIn 2001, the ADS provided in pertinent part:\n\n Competition under the Merit Promotion procedures is not required for\n the following actions:\n ...\n g) Promotion, reassignment, demotion, transfer, reinstatement, or detail\n to a position having promotion potential no greater than the potential of a\n position an employee currently holds or previously held on a permanent\n basis in the competitive service (or in another merit system with which\n OPM has an approved interchange agreement and which the employee\n did not lose because of performance or conduct reasons . . . .\n\nDef.’s Mem., Ex. 19 (ADS § 418.5.8(g) (2001)).\n\n\n 26\n\f 3. The Deputy Chief Position\n\n In the remaining portion of the plaintiff's second amended complaint, which addresses a\n\nposition for which the plaintiff was not selected (Count V), 12 he alleges that in 2001, while\n\nPorter I was still pending, he was an unsuccessful candidate for a GS-15 grade level Deputy\n\nChief position in the Personnel Operations Division. Second Am. Compl. ¶ 21. Here, the\n\nplaintiff contends that he was not selected because the Agency discriminated against him based\n\non his gender and chose an allegedly unqualified African-American female instead. Id. The\n\nplaintiff alleges that not only was he more qualified than the selectee, but that the individual\n\nselected did not possess the minimum qualifications for the position, i.e., a bachelor's degree.\n\nPl.'s Opp'n at 61. He alleges that his supervisor, who did not select him earlier for the\n\nSupervisory Labor Relations Specialist position and had demonstrated \"unlawful animus\" against\n\nhim, id. at 55, \"influenced\" the selection decision for the Deputy Chief position, id. at 60.\n\n The Agency contends that the plaintiff cannot maintain a Title VII discrimination claim\n\nas to the Deputy Chief position because the candidate hired was better qualified due to her\n\n\"knowledge, skills, . . . abilities,\" and \"leadership abilities.\" Def.'s Mem. at 17-19. The Agency\n\nmaintains that the candidate who was selected for the position had \"over 34 years of experience\n\nin human resource management,\" had been \"acting in a position very similar to the [Deputy\n\nChief] position at issue,\" supervised three-to-four times the number of employees that the\n\nplaintiff supervised at any given time, was the plaintiff's supervisor for up to two years, and\n\n\"'demonstrated broader knowledge in both civil service and foreign service personnel operations\n\nand related rules, regulations and procedures which is critical to the functioning of the position'\"\n\n12\n As the Court has already noted, the plaintiff does not contest the defendant's motion for summary\njudgment as it relates to the portion of Count V, which alleges racial discrimination. Pl.'s Opp'n at 2.\n\n\n 27\n\fthan did the plaintiff during the interviews for the position. Id. at 18-19 (citation omitted). The\n\nAgency further contends that because \"[it] applied the same standards to each applicant, using\n\nthe same interview panel and questions,\" it was \"unlikely\" than any discrimination occurred. Id.\n\nat 19.\n\n As to this gender discrimination claim, the plaintiff again has the initial burden of\n\nproving by a preponderance of the evidence a prima facie case of discrimination. Concerning\n\nthis burden, the plaintiff has established that he applied for a promotion for which he was not\n\nselected. Pl.'s Opp'n at 60. Yet, in this case, more is required. Where a male plaintiff claims\n\ngender discrimination, the traditional McDonnell Douglas test is applied differently because\n\n\"'there is nothing inherently suspicious'\" about an employer's decision to promote a qualified\n\nminority applicant, in this case, a woman. Mastro v. Potomac Elec. Power Co., 447 F.3d 843,\n\n851 (D.C. Cir. 2006) (quoting Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993)); see also\n\nHamilton v. Paulson, 542 F. Supp. 2d 37, 43 n.6 (D.D.C. 2008) (stating that \"reverse\n\ndiscrimination\" analysis applies where a male claims a violation of Title VII's protection against\n\ngender discrimination). Thus, \"a majority-group plaintiff alleging Title VII discrimination must\n\nshow 'additional background circumstances that support the suspicion that the defendant is that\n\nunusual employer who discriminates against the majority.'\" Mastro, 447 F.3d at 851 (quoting\n\nParker v. Balt. & Ohio R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981)); see also Hunter v. Rice, 480\n\nF. Supp. 2d 125, 135 (D.D.C. 2007) (applying reverse discrimination analysis of Mastro where\n\nmale alleged gender discrimination based on agency's promotion of female); cf. Nevada Dep't of\n\nHuman Res. v. Hibbs, 538 U.S. 721, 730 (2003) (\"'[I]t can hardly be doubted that . . . women\n\nstill face pervasive, although at times more subtle, discrimination . . . in the job market.'\"\n\n\n\n 28\n\f(quoting Frontiero v. Richardson, 411 U.S. 677, 686 (1973))). The plaintiff simply has offered\n\nno evidence that the Agency is the type of employer who traditionally discriminates against men.\n\nAnd, even assuming the plaintiff could meet his burden to establish institutional male\n\ndiscrimination, i.e. his burden of proving a prima facie case, he also has not put forth enough\n\nevidence to rebut the Agency's proffered legitimate, nondiscriminatory rationale for selecting the\n\ncandidate who was chosen for the position. And here, the Agency has articulated a legitimate,\n\nnon-discriminatory explanation for its decision, having stated that the female selected had \"over\n\n34 years of experience in human resource management,\" had been serving in a similar position to\n\nthat of Deputy Chief, and had far more supervisory experience than that of the plaintiff, even\n\nhaving supervised the plaintiff for some time. Def.'s Mem. at 18-19.\n\n Regarding the plaintiff's attempt to rebut the Agency's explanation for its selection\n\ndecision, the only aspects of the plaintiff's candidacy that he identifies as exceeding those of the\n\nselectee include his educational credentials and two years of \"classification experience.\" Pl.'s\n\nOpp'n at 61. Indeed, the plaintiff makes a great fuss over the fact that the selectee does not have\n\na college degree, whereas he holds three degrees. Id. The plaintiff points out, and it is\n\nuncontested, that the job description for the Deputy Chief position states, under the category of\n\neducation, that a \"B.A./B.S. in personnel management, business administration or international\n\nbusiness management is required[,] [and a] M.A./M.S. is desired.\" Def.'s Mem., Ex. 32\n\n(Position Description) at 6; see Pl.'s Opp'n at 61. The plaintiff glosses over the fact that, by the\n\nplain text of the description, neither he nor the hired candidate fulfills this criterion. While the\n\nplaintiff holds two \"desired\" master's degrees, his bachelor's degree was in political science, Pl.'s\n\nFacts Statement, Ex. 2 (Resume of Melvin C. Porter) at 1 (emphasis added), not \"personnel\n\n\n\n 29\n\fmanagement, business administration or international business management,\" Def.'s Mem., Ex.\n\n32. Therefore, the Court finds that the plaintiff merely exceeded the hired candidate in an area\n\nwhere neither candidate satisfied one of the actual designated qualification factors. And, in the\n\nabsence of any suggestion that the Agency rendered its selection decision based on\n\nimpermissible discrimination and \"given the dynamic nature of the hiring process,\" this Court\n\nwill not \"second-guess how an employer weighs particular factors in the hiring decision.\"\n\nJackson, 496 F.3d at 709; see id. (\"'employers are not rigidly bound by the language in a job\n\ndescription'; employer's 'decision to weigh administrative/managerial experience more heavily\n\nthan the job description suggested [was] simply not sufficient to demonstrate' falsity of\n\nemployer's qualifications-based explanation\" (quoting Browning v. Dep't of Army, 436 F.3d 692,\n\n696-97 (6th Cir. 2006))); see also Lee v. GTE Fla., Inc., 226 F.3d 1249, 1255 n.2 (11th Cir.\n\n2000), quoted in Jackson, 496 F.3d at 709 (\"evidence that employer 'changed the importance of\n\nthe criteria he used in the selection process' did not tend to show that employer's asserted\n\nnondiscriminatory explanation was false.\"). Similarly, the Court cannot find that the plaintiff's\n\ntwo years of classification experience are determinative of him being the significantly more\n\nqualified candidate because that experience occurred fifteen years earlier during his tenure with\n\nanother agency. See Pl.'s Facts Statement, Ex. 2 (Resume of Melvin C. Porter) at 3.\n\n Here, where the Agency insists that the criterion of education and classification\n\nexperience alone were not determinative of its ultimate selection decision, but rather it weighed\n\nthe \"relative qualifications of the candidates, '[this Court] must assume that a reasonable juror\n\nwho might disagree with the employer's decision[s], but would find the question close, would not\n\n\n\n\n 30\n\fusually infer discrimination on the basis of a comparison of qualifications alone.'\" Jackson, 496\n\nF.3d at 707 (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc)).\n\n Despite the plaintiff's argument to the contrary, the question of the two candidates'\n\nqualifications is close. Therefore, it does not appear that the plaintiff was \"significantly better\n\nqualified for the job\" than was the successful candidate, see id. at 707, or even actually better\n\nqualified. The plaintiff has not countered the Agency's identification of numerous weaknesses in\n\nhis own credentials, or cast doubt upon the proffered strengths of the successful candidate's\n\ncredentials. The Agency maintains that the African-American female who was selected \"had, as\n\nof July 3, 2001, over 34 years of experience in human resource management regarding the civil\n\nservice rules and regulations,\" Def.'s Mem. at 18, while the plaintiff had roughly half that level\n\nof experience, Second Am. Compl. ¶ 8. The Agency also maintains that the successful candidate\n\nhad been with the Agency longer than the plaintiff, had experience \"acting in a position very\n\nsimilar to the . . . deputy position at issue in this case\" for over a decade, had supervised up to\n\ntwenty-five employees as compared to the plaintiff's supervision of nine employees, and, in fact,\n\nhad been the plaintiff's supervisor for almost two years. Def.'s Mem. at 18-19. Moreover, the\n\nAgency represents that \"[during the successful candidate's] tenure at [the Agency], [her] various\n\npositions . . . included [four years as] Chief of the Staffing Branch . . . and [three years as a]\n\nSenior Policy Analyst.\" Id. at 18. In comparison, during his tenure with the Agency, and prior\n\nto his current Administrative Officer position, the plaintiff had been a Supervisory Personnel\n\nManagement Specialist for three years, a non-consecutive tenure of approximately two years as\n\nthe Deputy Chief of the Recruitment Division, and Acting Chief of the Recruitment Division for\n\nten months. Pl.'s Facts Statement, Ex. 2 (Resume of Melvin C. Porter) at 2. On this record, the\n\n\n\n 31\n\fplaintiff has not demonstrated a marked difference between his and the successful candidate's\n\nsupervisory and management experience.\n\n Further, the Agency states that the successful candidate had \"developed personnel-related\n\npolicies\" in several areas, and \"performed better in the interview than [the plaintiff] because her\n\nresponses to questions 'demonstrated broader knowledge in both civil service and foreign service\n\npersonnel operations and related rules, regulations and procedures which is critical to the\n\nfunction of the position [for which she was ultimately selected].'\" Def.'s Mem. at 18 (citation\n\nomitted). The Agency adds, and the plaintiff has not shown otherwise, that all the candidates for\n\nthe Deputy Chief position were held to \"the same standards . . . using the same interview panel\n\nand questions,\" and the candidate ultimately selected was chosen based on \"her skills and\n\nabilities, her outstanding performance, her unparalleled institutional knowledge, and because,\n\nunlike [the plaintiff], she had held a similar position before and more recently had been acting in\n\nthe position on a temporary basis.\" Id. at 19. Indeed, the sum total of the evidence that the\n\nplaintiff has offered in his attempt to rebut the Agency's representations concerning why he was\n\nnot selected are the three degrees he has acquired, whereas the successful candidate had no\n\ndegree, and his two \"years of position classification experience, [while the person selected had\n\nnone,] . . . [noting that he had] served as Chief of the Classification Branch for [another\n\ngovernment agency,] the Small Business Administration[,]\" roughly fifteen years earlier. Pl.'s\n\nOpp'n at 61; Pl.'s Facts Statement, Ex. 2 (Resume of Melvin C. Porter) at 3. The Court must\n\ndecline to second-guess the Agency's business decisions upon a record such as the one before it,\n\nsee, e.g., Stewart v. Ashcroft, 352 F.3d 422, 429-30 (D.C. Cir. 2003) (rejecting the plaintiff's\n\nargument that he was \"discernibly better\" qualified for a supervisory position because he had\n\n\n\n 32\n\fmany more years of litigation experience as an attorney than the successful candidate), and\n\ntherefore cannot conclude that the two factors advanced by the plaintiff made him significantly\n\nbetter qualified than the successful candidate.\n\n Similarly, the Court cannot find that the Agency's rationale for its selection decision was\n\na mere pretext for its true motive of gender discrimination. The plaintiff's conclusory allegations\n\nto the contrary are alone simply too tenuous to raise a genuine issue of material fact that must be\n\npresented to a jury. Accordingly, the Court must award summary judgment to the Agency on the\n\ngender discrimination aspect of Count V of the plaintiff's second amended complaint.\n\nD. Retaliation\n\n Just as with claims for illegal discrimination, the Court must employ the McDonnell\n\nDouglas burden-shifting test to the plaintiff's claims for retaliation. Vickers, 493 F.3d at 194.\n\n\"To make out a prima facie case of illegal retaliation, [the plaintiff] must show that '(1) []he\n\nengaged in statutorily protected activity; (2) h[is] employer took an adverse personnel action\n\nagainst h[im]; and (3) a causal connection exists between the two'\" events. Id. at 195 (quoting\n\nCarney v. Am. Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998)). Because a causal connection is\n\noften hard to establish in the absence of any direct evidence of causation, to establish this\n\nelement of a retaliation claim a plaintiff may submit indirect evidence, including, for example,\n\nevidence of \"'very close'\" temporal proximity between the alleged act of retaliation and the\n\npurported protected activity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)\n\n(citing various cases which conclude that a period of three-months or more, by itself, is\n\ninsufficient to establish the nexus).\n\n\n\n\n 33\n\f Further, for an act of alleged retaliation to be actionable, it must be an act that would\n\n\"'dissuade[] a reasonable worker from making or supporting a charge of discrimination.'\"\n\nBurlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation omitted). This\n\nreasonable person standard has been employed because \"[t]he anti-retaliation provision seeks to\n\nprevent employer interference with 'unfettered access' to Title VII's remedial mechanisms . . . .\n\n[a]nd normally petty slights, minor annoyances, and simple lack of good manners will not create\n\nsuch deterrence.\" Id. (citation omitted). In other words, only a plaintiff's claims that relate to\n\nAgency's actions which are of the type \"likely 'to deter victims of discrimination from\n\ncomplaining to the EEOC,' the courts, and their employers\" can survive summary judgment. Id.\n\n(citation omitted).\n\n Just as with the application of the McDonnell Douglas test to discrimination claims based\n\non race and gender, once the plaintiff has made this prima facie showing of prohibited\n\nretaliation, the Agency must then proffer \"some legitimate, nondiscriminatory [i.e., non-\n\nretaliatory] reason' for its actions.\" Vickers, 493 F.3d at 195 (quoting McDonnell Douglas, 411\n\nU.S. at 802). Upon such a proffer from the Agency, the plaintiff must establish that the Agency's\n\nreason \"is [a] mere pretext and thus a 'coverup'\" for its true retaliatory motive. Id. (citing\n\nMcDonnell Douglas, 411 U.S. at 805). \"In order to prove [that] the [Agency's] explanations for\n\nalleged acts of . . . retaliation are pretextual, [the plaintiff] must show 'both that the reason [the\n\nAgency provided] was false, and that . . . [retaliation] was the real reason [for the Agency's\n\ndecision].'\" Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir. 2007) (citation omitted).\n\n\n\n\n 34\n\f The plaintiff has asserted five counts of retaliation that remain unresolved. 13 These\n\nclaims include his assertions that the defendant unlawfully retaliated against him (1) by \"denying\n\n[him a] promotion to the position of GS-15 Supervisory Labor Relations Specialist,\" Second Am.\n\nCompl. ¶ 33 (Count II); (2) by \"denying [him a] promotion to the position of GS-15\n\nAdministrative Officer within the Agency's Global Bureau,\" id. ¶ 38 (Count IV); (3) by \"denying\n\n[him a] promotion to the position of GS-15 Deputy Chief within the Agency's Personnel\n\nOperations Division,\" id. ¶ 43 (Count VI); (4) by \"issuing [him] an adverse [mid-year]\n\nperformance assessment in July 2003,\" id. ¶ 58 (Count XII); and (5) by \"issuing [him] an adverse\n\ninterim performance assessment in September 2004,\" id. ¶ 63 (Count XIV). The plaintiff alleges\n\nthat the statutorily protected activity that preceded his retaliation claims was his first Title VII\n\nlawsuit, Porter I, Pl.'s Opp'n at 4-5, as well as his \"numerous administrative grievances and EEO\n\nclaims against the Agency\" that preceded the filing of that lawsuit, Second Am. Compl. ¶¶ 32,\n\n37, 42, 57, 62, and his EEO complaint filed after the resolution of his lawsuit in November 2002,\n\nPl.'s Opp'n at 32.\n\n 1. The Supervisory Labor Relations Specialist Position\n\n In Count II of his second amended complaint, the plaintiff alleges that on August 29,\n\n2000, the Agency retaliated against him because of his prior protected activity, the initiation of\n\nPorter I earlier that month, when it laterally transferred a Caucasian into the position of\n\nSupervisory Labor Relations Specialist. Pl.'s Opp'n at 11. The plaintiff contends that the\n\n\"temporal proximity\" of his non-selection with the initiation of his lawsuit, both within the same\n\n13\n As explained above, the principle of res judicata prohibits the plaintiff from relitigating any\nallegations of retaliation based on the defendant's denial of a performance award to the plaintiff in 2001\n(Count VIII), and the defendant's issuance of an allegedly adverse performance assessment with respect to\nthe plaintiff's job performance for 2002 (Count X).\n\n\n 35\n\fmonth, raises a genuine issue of material fact as to this retaliation claim, precluding summary\n\njudgment for the defendant. Id. at 55-56.\n\n The Agency responds that the plaintiff cannot maintain this claim for retaliation because\n\nits selection decision was made for a legitimate, non-retaliatory reason – because the successful\n\ncandidate's skills were more commensurate with the position than were the plaintiff's. Def.'s\n\nMem. at 14-15. In addition, the Agency maintains that because it held all candidates to the same\n\nstandards, any retaliation in the selection process was \"unlikely,\" as all candidates were impacted\n\nby the weight it attributed to the various skills in the same manner. Id. at 16. The Agency also\n\npoints to the fact that it revisited the vacancy announcement prior to the plaintiff having\n\nexpressed any interest in that position, so its revision of that announcement is immaterial and\n\ndoes not warrant any inference that the Agency acted with any specific animus toward the\n\nplaintiff. Id. at 17.\n\n The plaintiff rejoins that the Agency's actions demonstrate its pretexual motives because\n\n\"[he] was markedly better qualified than [the successful candidate] for the Supervisory Labor\n\nRelations position,\" Pl.'s Opp'n at 58, and \"the Agency violated established policies and\n\nprocedures[] to the benefit of [that candidate] and the detriment of [the plaintiff]\" by\n\ndeemphasizing supervisory skills when it revised the vacancy announcement, id. at 56.\n\nSpecifically, the plaintiff contends that the Agency deliberately revised the job description for\n\nthe position to exclude someone with his qualifications, and that \"[a] factfinder could conclude\n\nthat supervisory experience was not reflected\" in the job description \"to the detriment of [the\n\nplaintiff] who had vast supervisory experience.\"14 Id. at 56-58. The plaintiff also maintains that\n\n\n14\n The plaintiff attempts to buttress his argument for why the successful candidate was less qualified\nby quoting union representatives not employed by the Agency who had views on the successful\n (continued . . . )\n 36\n\fthe Agency \"deliberately sought only non-status employees in order to avoid selecting [the\n\nplaintiff].\" Id. at 58.\n\n Mindful of the fact that the prima facie showing of retaliation is not meant to be an\n\n\"onerous\" one, Burdine, 450 U.S. at 253, the Court finds that the plaintiff's allegations that he\n\napplied for but did not receive the Supervisory Labor Relations Specialist position within the\n\nsame month after he initiated Porter I satisfies the required showing of his participation in a\n\n\"statutorily protected activity,\" that he was the victim of \"an adverse personnel action,\" and that\n\n\"a causal connection\" exists between these two events, Vickers, 493 F.3d at 195 (internal\n\nquotation marks and citation omitted). Further, as with the plaintiff's other non-selection\n\nretaliation claims (Counts IV and VI), this claim refers to alleged conduct, non-selection for a\n\nposition with a higher pay grade, which objectively is the type of action that would deter a\n\nreasonable employee from making a future discrimination claim. See Burlington, 548 U.S. at 68.\n\n In addressing the plaintiff's discrimination claim with respect to this position, the Court\n\nhas already set forth what it deems to be the Agency's legitimate, non-retaliatory rationale for its\n\nselection of the successful Caucasian candidate for this position – the successful candidate had\n\nbetter tailored qualifications for the position. See Def.'s Mem. at 15-16. Specifically, the\n\nAgency states that it made its selection because the successful candidate was an attorney who\n\n\"had practiced law for approximately ten years prior to his selection for the [position],\" held a\n\nlaw degree from a prestigious law school, id. at 15, and had experience performing the legally\n\nrelated functions that comprise the duties of the position, see Pl.'s Facts Statement, Ex. 61\n\ncandidate's qualifications. Pl.'s Opp'n at 59-60. This proffer is highly irrelevant, as the plaintiff has not\nexplained how their post hoc opinions are in any way germane to this lawsuit. Moreover, the plaintiff\ndoes not explain how the bulk of what these individuals indicate would be admissible under the Federal\nRules of Evidence.\n\n\n 37\n\f(Supervisory Labor Relations Specialist Vacancy Notice) at 1. On the other hand, the Agency\n\nmaintains that the plaintiff did not have a legal degree, had drafted only one appeal, never\n\nprepared a final agency decision during his career or drafted an agency-level Foreign Service\n\ndecision, and had never represented the Agency before the Foreign Service Grievance Board, all\n\ntasks which he would be required to perform if he had been selected for the position. Def.'s\n\nMem. at 15-16. Although the successful candidate may have had less supervisory experience\n\nand tenure at the Agency than the plaintiff, the Agency deemed those factors to be less\n\nimportant. Id. Based on the Agency's proffered reason for the plaintiff's non-selection, the\n\nburden shifts back to the plaintiff to show why the that reason was false and amounted to an\n\nattempt by the Agency to conceal its true retaliatory motivation. Weber, 494 F.3d at 186.\n\n The plaintiff has failed to meet this burden, having neglected to show how the Agency's\n\nproffered reason for its decision was falsely offered, and that it was designed to cloak its true\n\nretaliatory motive. Temporal proximity of the Agency's selection decision and the plaintiff's\n\nearlier lawsuit, while it supports the finding of a prima facie case, is not, without more, proof\n\nenough to show that the Agency acted with retaliatory intent. See Patterson v. Johnson, 505 F.3d\n\n1296, 1299-1301 (D.C. Cir. 2007) (finding that while temporal proximity \"could support a jury's\n\nfinding of a causal link\" to support a prima facie case, the plaintiff ultimately failed to show that\n\nhis employer's transfer decision was retaliatory). And, although the position's description was\n\nrevised after it was initially issued, the evidence indicates that it was not the only position\n\ndescription revised at that time, Pl.'s Opp'n at 57; Ex. 62 (Undated E-mail from Michelle Walker\n\nto Diana Lopez and Robert Ward) (stating that the descriptions for \"both of the . . . jobs . . .\n\nneed[ed] [to be] adjusted\"), and the plaintiff acknowledges that he never expressed to the\n\n\n\n 38\n\fselecting official any interest in applying for the position prior to the revision, Def.'s Mem. at 17.\n\nAt bottom, the plaintiff has failed to supply the necessary evidence to permit the Court to make\n\nthe inferential leap between these revisions and his speculation that the Agency revised the\n\nSupervisory Labor Relations Specialist position description for the purpose of specifically\n\nretaliating against him.\n\n The plaintiff has also put forth no evidence to cause the Court to question the Agency's\n\ncontention that all candidates for the position were considered on the same basis as the plaintiff,\n\nsee Def.'s Mem. at 16, or that the explanation about the revised position description is designed\n\nto somehow conceal the true responsibilities of that position, which the plaintiff contends were\n\nprimarily supervisory, Pl.'s Opp'n at 56-57. Finally, as already discussed above in addressing the\n\nplaintiff's discrimination claim as to the selection decision for the position, the plaintiff has\n\noffered insufficient evidence to demonstrate that he was significantly more qualified than the\n\nsuccessful candidate. Therefore, because the plaintiff has ultimately failed to create a reasonable\n\ninference that the Agency's rationale that the successful candidate was better qualified for the job\n\nmasked its ulterior and nefarious retaliatory motive against the plaintiff, the Court must award\n\nsummary judgment to the Agency on Count II of the second amended complaint.\n\n 2. The Administrative Officer Position\n\n In Count IV of his second amended complaint, the plaintiff alleges that in May 2001, the\n\nAgency retaliated against him due to his participation in protected activity, again the litigation of\n\nPorter I, when it laterally transferred a Caucasian employee into the position of Administrative\n\nOfficer. Pl.'s Opp'n at 11. The plaintiff alleges that the hiring official demonstrated \"unlawful\n\nanimus towards [him]\" by laterally transferring the other employee who was already in a GS-15\n\n\n\n 39\n\fgrade level position, instead of opening the position to the competitive process for a position that\n\nwas \"a natural progression for a veteran GS-14 Administrative Officer such as [himself].\" Pl.'s\n\nOpp'n at 62, 65.\n\n The Agency contends that the plaintiff has not established his prima facie case and\n\ntherefore cannot maintain a Title VII retaliation claim as to his non-selection for the\n\nAdministrative Officer position because: (1) he cannot show that he was the victim of any\n\nadverse action considering that the Agency \"had discretion to laterally transfer [the Caucasian\n\nemployee] into any open position at the same grade level,\" Def.'s Mem. at 10-11 & n.3, Ex. 19\n\n(ADS § 418.5.8(g) (2001)); (2) the plaintiff \"was not eligible for that position as a lateral\n\nreassignment,\" and, in fact, the Agency official who made the reassignment \"did not consider\n\nany GS-14 employees[, the plaintiff's grade level at that time,] for the position,\" Def.'s Mem. at\n\n9; (3) the plaintiff \"never expressed any interest in the position\" when the lateral transfer was\n\nmade, id.; (4) the plaintiff's argument that he would have been a competitive candidate for the\n\nposition because his \"qualifications do not make him so starkly better qualified than [the\n\ntransferred candidate]\" is based on nothing other than mere speculation, id. at 13; and (5) the\n\nplaintiff has not established causation because he challenges an employment decision that\n\noccurred prior to the Agency official's awareness of the plaintiff's prior protected activity – the\n\nPorter I litigation, id. at 31-32; Reply to Plaintiff's Opposition to Defendant's Motion for\n\nSummary Judgment (\"Def.'s Reply\") at 5-6. The Agency further contends that even if the\n\nplaintiff has established a prima facie case, it laterally transferred the individual selected because\n\n\n\n\n 40\n\fhe was better suited for the Administrator Officer position, Def.'s Mem. at 13-14, and therefore\n\nthe plaintiff cannot maintain this retaliation claim. 15\n\n It is beyond dispute that the plaintiff's EEO activity and previous lawsuit alleging Title\n\nVII violations amount to statutorily protected activities, 42 U.S.C. § 2000e-3(a) (prohibiting\n\ndiscrimination against an employee because he “opposed any practice made an unlawful\n\nemployment practice by this subchapter, or because he has made a charge, testified, assisted, or\n\nparticipated in any manner in an investigation, proceeding, or hearing under this subchapter”),\n\nand therefore the defendant challenges the plaintiff's ability to establish the remaining two\n\nelements of his prima facie case – that there was an adverse personnel action and causation.\n\nDef.'s Mem. at 9-11, 31-32. Because the Court is satisfied that causation is not the element that\n\nposes a barrier to the plaintiff's prima facie case, it will dispose first of that issue before\n\ndiscussing whether the Agency's lateral transfer of another employee caused him to sustain an\n\nadverse personnel action.\n\n In assessing whether the causation component of the plaintiff's prima facie case has been\n\nsatisfied, evidence of the temporal proximity between purported protected activity and the\n\nchallenged personnel action, as well as the Agency's awareness of the plaintiff's protected\n\nactivity, are relevant factors that should be considered by the Court. See Clark County Sch.\n\nDist., 532 U.S. at 273-74 (requiring \"very close\" temporal proximity between the time of \"an\n\n15\n While the Agency urges that because the transferred candidate also had engaged in \"prior EEO\nactivity,\" it is \"highly unlikely\" that the Agency would have singled out the plaintiff to retaliate against\nhim for the plaintiff's participation in statutorily protected activity, Def.'s Mem. at 14, the transferred\ncandidate's activity appears to have been in the nature of an administrative/investigative participant in an\nEEO matter, not as a complainant who had filed a grievance, see Def.'s Mem., Ex. 33 (Aug. 26, 2001\nAffidavit of Tim Winchell). Considering that an administrative or investigative role in an EEO\nproceeding is in no way comparable to the filing of an EEO complaint and a subsequent lawsuit, the\nlogical connection between the two situations is unclear, and the Court will not address the matter further.\n\n\n 41\n\femployer's knowledge of protected activity and an adverse employment action\" (citation\n\nomitted)). At first blush, the temporal proximity between the date that the plaintiff filed his\n\ncomplaint in Porter I, August 11, 2000, see Compl., Porter I, Civ. No. 00-1954 (D.D.C. Aug. 11,\n\n2000), and the date of the lateral transfer, May 28, 2001, Pl.'s Opp'n at 62, seems too great to\n\nmake any inferential link between the two events. However, because the plaintiff has alleged\n\nthat the statutorily protected activity in which he was engaged included his \"filing [of] numerous\n\nadministrative grievances and EEO claims against the Agency and [his act of] filing and\n\nsuccessfully litigating the 2000 Lawsuit against the Agency,\" First Amended Complaint (\"Am.\n\nCompl.\") ¶ 32 (emphasis added), the Court is satisfied the plaintiff has satisfactorily pled\n\ncausation as part of his prima facie case. This is because a plaintiff's \"participation\" in a\n\nstatutorily protected activity can support a retaliation claim if the plaintiff is discriminated\n\nagainst for exercising that right. See 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against\n\nan employee because he “opposed any practice made an unlawful employment practice by this\n\nsubchapter, or because he has made a charge, testified, assisted, or participated in any manner in\n\nan investigation, proceeding, or hearing under this subchapter”). And during the time when the\n\nplaintiff continued to pursue his protected activity, he was protected from being retaliated against\n\nbased on his pursuit of that activity. See, e.g., Casole v. Johanns, 577 F. Supp. 2d 138, 140-41\n\n(D.D.C. 2008) (finding that the plaintiff's continuing participation in EEO-protected activity\n\nprecluded dismissal of the claim based on lack of causation); See also Deravin v. Kerik, 335 F.3d\n\n195, 204 (2d Cir. 2003) (\"defending oneself against charges of discrimination – to the extent that\n\nsuch defense involves actual participation in a Title VII proceeding or investigation – is\n\n'protected activity' within the scope of § 704(a) [i.e., 42 U.S.C. § 2000e-3(a)] based on a plain\n\n\n\n 42\n\freading of the statute's text.\"). Here, for example, the plaintiff contends that although he initiated\n\nhis lawsuit in August of 2000, he was still actively engaged in that litigation, demonstrated by\n\nthe fact that he deposed an Agency witnesses in September of 2001, only four months after the\n\nselection for the Administrative Officer position was made, Pl.'s Opp'n at 66, which the Court\n\nfinds clearly establishes the Agency’s knowledge of the plaintiff's continued active participation\n\nin protected activity. The Court therefore finds that a sufficient temporal nexus between the\n\nplaintiff's participation in Porter I and his non-selection for the administrative officer position\n\nexists to permit the inference of a causal relation between the two events.\n\n It is with the adverse employment action element of the plaintiff's prima facie case that\n\ndifficulty for the plaintiff arises. First, the Agency's decision not to utilize the competition\n\nprocess was authorized by the Agency's internal policy. 16 See Def.'s Mem., Ex. 19 (ADS §\n\n418.5.8(g) (2001)). However, although authorized, such a decision could be actionable as an\n\nadverse employment action if it was \"tantamount to refusing to promote [the plaintiff].\" Cones\n\nv. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (\"'no particular type of personnel action [is]\n\nautomatically excluded from serving as the basis of a cause of action' under Title VII, as long as\n\nthe plaintiff is 'aggrieved' by the action\" (citation omitted)). While this first potential\n\nimpediment to the viability of this claim raises concerns, other problems actually doom the\n\nplaintiff’s ability to maintain it.\n\n A second problem for the plaintiff is the requirement that to maintain this claim, the\n\nplaintiff must show that he did what he could to express interest in the position at the time the\n\nposition was available. Id. at 518 (citing EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir.\n\n\n16\n See note 11, supra.\n\n\n 43\n\f1990), for the principle that \"[c]ourts have generally held that the failure to formally apply for a\n\njob opening will not bar a Title VII plaintiff from establishing a prima facie case of\n\ndiscriminatory hiring, as long as the plaintiff made every reasonable attempt to convey his\n\ninterest in the job to the employer\"); see, e.g., Hussain v. Principi, 344 F. Supp. 2d 86, 97\n\n(D.D.C. 2004) (\"Though [the] plaintiff now contends he did want to be Chief of Radiology . . .\n\nhe does not produce evidence that he conveyed this interest to his superiors.\" (citation omitted)).\n\nThe plaintiff contends that he is relieved from this requirement because he \"ha[d] no opportunity\n\nto express his interest in [the Administrative Officer] position,\" and that \"[]he would have\n\napplied\" had the position been advertised. 17 Pl.'s Opp'n at 63 (citation omitted). While the\n\nplaintiff raises a question of fact concerning whether he had an opportunity to apply for the\n\nposition, 18 he has not raised a question of fact that is material based on the following deficiency\n\nthat dooms this retaliation claim.\n\n17\n The plaintiff goes so far as to suggest that knowledge of his interest in advancement to the\nAdministrative Officer position should be constructively imposed on the Agency because the selecting\nofficial should have known that he was interested in advancing beyond his pay grade level to any GS-15\nposition. Pl.'s Opp'n at 64-65. The plaintiff's position finds no support in existing precedent, nor should it\nbe afforded legal significance. Acceptance of his position would logically lend itself to the proposition\nthat the plaintiff had or will in the future have constructively expressed an interest in acquiring any GS-15\nposition filed by the Agency during his tenure as a GS-14 level employee merely because of his\ncontinuing advancement aspirations. Cf. Morgan v. Fed. Home Loan Mortgage Corp., 172 F. Supp. 2d\n98, 109 (D.D.C. 2001) (stating that \"there must be an available position\" which a plaintiff expresses an\ninterest in acquiring before a claim for discrimination can be pursued). More is needed, and the absence\nfrom the record of any actual expression by the plaintiff of his interest in a particular position that he later\ncomplains he was not selected casts doubt on the sincerity of the claim and whether it is the mere\nmanufacture of hindsight and creativity.\n18\n The plaintiff testified in his deposition that \"he recalled – from reading the Agency’s Report of\nInvestigation – an e-mail in which an[other] employee had expressed interest in either a GS-14 or GS-15\nAdministrative Officer position,\" and even knew that that person served in that role on a temporary basis,\nprior to the Agency's decision to fill the position permanently through the lateral transfer at issue. Pl.'s\nOpp'n at 64. The plaintiff now maintains, however, that because there is no evidence that \"any other\nemployee expressed interest in the permanent GS-15 Administrative Officer position,\" as opposed to the\ntemporary position, that his claim should not be defeated by the fact that he did not express interest in the\nposition when it was available. Id. (emphasis added). Absent evidence that the plaintiff expressed any\n (continued . . . )\n 44\n\f Even assuming that the plaintiff has established a prima facie case, he still falls short of\n\nadequately rebutting the Agency's legitimate, non-retaliatory reason for its lateral transfer\n\ndecision. The Agency has explained that it non-competitively transferred an existing GS-15\n\ngrade level employee into the position based on its assessment of his \"exceptional credentials\n\nand demonstrated excellence in his previous positions.\" Def.'s Mem. at 14. For the reasons\n\nalready articulated in the Court's analysis of why the plaintiff cannot maintain a claim of racial\n\ndiscrimination with respect to his non-selection for this position, the plaintiff has similarly not\n\nestablished that the Agency's transfer process was an improper pretext for retaliation. The\n\nplaintiff's contention that his six years experience in a similar position at the GS-14 grade level,\n\nwhich was a lower grade level than the level held by the transferred candidate, and that a\n\npromotion would have been \"a natural progression\" for his career, Pl.'s Opp'n at 65, rendered him\n\nmore qualified than the person who was transferred, are inadequate for the Court to infer that the\n\nAgency's implementation of an authorized lateral transfer was utilized for the purpose of\n\nretaliating against the plaintiff. Accordingly, the Court must grant summary judgment to the\n\nAgency on Count IV of the plaintiff's second amended complaint.\n\n3. The Deputy Chief Position\n\n In Count VI of his second amended complaint, the plaintiff alleges that in October 2001,\n\nthe Agency retaliated against him for his participation in prior protected activity, again the\n\nlitigation of Porter I, when it selected an African-American female for the position of Deputy\n\ninterest in the position, the Court is hesitant to construe the Agency's decision to laterally staff the\nposition as grounds to relieve the plaintiff of his burden to demonstrate that he expressed an interest in\nacquiring the position. And the plaintiff never expressed an interest in the position until after the position\nwas filled on a permanent basis, see Pl.'s Opp'n at 62-64, even though either the temporary staffing of the\nposition alone, or the e-mail in which another employee expressed an interest in filling the position,\nshould have put the plaintiff on notice that the Agency might permanently fill the position.\n\n\n 45\n\fChief during the pendency of the Porter I litigation. 19 Pl.'s Opp'n at 11. The plaintiff asserts that\n\nthe defendant's explanation for its selection decision is pretextual because the successful\n\ncandidate was not qualified for the position since she did not have a college degree, an expressed\n\nqualification for the position, id. at 61, while he held three degrees when the selection was made,\n\nPl.'s Facts Statement, Ex. 2 (Resume of Melvin C. Porter). The Agency proffers that it selected\n\nthe successful candidate based on her credentials, supervisory experience, and her \"long and\n\ndistinguished career at the [A]gency\" and not for a retaliatory reason. Def.'s Mem. at 18. The\n\nAgency contends that \"there is little or no evidence that the decision makers focused on, or even\n\nrecognized th[e] fact\" that the successful candidate did not have a college degree. Def.'s Reply at\n\n10.\n\n As a starting point for the Court's analysis of the sustainability of this claim, it reiterates\n\nthe finding made concerning the plaintiff's gender discrimination claim regarding this same\n\nposition and likewise concludes that the plaintiff has satisfied his burden to establish a prima\n\nfacie case of retaliation as to the Deputy Chief position. Namely, that the Agency hired a female\n\nfor the position instead of the plaintiff, which was an adverse employment action, during the\n\npendency of Porter I, which is a statutorily protected activity, one month after his supervisor was\n\ndeposed in Porter I, which is sufficiently close in time to reasonably infer a causal connection\n\n\n\n\n19\n The plaintiff also asserts that because the Agency filled the Deputy Chief position twenty days\nafter his supervisor was deposed in Porter I, and that same supervisor supervised the actual hiring official\nand concurred with that official's decision, that material questions of fact exist as to the supervisor's\ninfluence over the selection decision that precludes summary judgment on this claim. Pl.'s Opp'n at 60.\nTo the contrary, absent any evidence proffered by the plaintiff that the supervisor exerted undue or\nimproper influence over the decision, and did not merely just concur with the hiring official's decision,\nimproper pressure based upon a retaliatory motive would require speculation and cannot reasonably be\ninferred from the evidence in the record.\n\n\n 46\n\fbetween the two events. Vickers, 493 F.3d at 194. Therefore, the plaintiff has established his\n\nprima facie case of retaliation.\n\n Yet, as the Court explained with respect to the plaintiff's gender discrimination claim\n\nconcerning the selection decision for the Deputy Chief position, neither the successful candidate\n\nnor the plaintiff met the express requirements outlined in the education section of the vacancy\n\nannouncement for the position. See Def.'s Mem., Ex. 32 (Position Description). Moreover, the\n\nevidence does not establish that the Agency considered the candidates' educational deficiencies\n\nin the final analysis, but rather focused on the nature of their experience and the quality of their\n\nperformance while employed by the Agency as the factors that formed the basis for its selection\n\ndecision. Def.'s Reply at 10-11. Thus, the legitimate, non-retaliatory explanation the Agency\n\nprovided for its selection of the successful candidate was that she was better suited for the\n\nposition. Id. In the absence of more persuasive evidence of retaliation in the record, the Court\n\nwill not question the weight the Agency allocated to the various factors it considered or read an\n\nimpermissible retaliatory motive into that decision. Jackson, 496 F.3d at 707 (\"Particularly\n\ngiven the dynamic nature of the hiring process, . . . we have also stated that we will not second-\n\nguess how an employer weighs particular factors in the hiring decision.\"); see also Barnette v.\n\nChertoff, 453 F.3d 513, 517 (D.C. Cir. 2006) (\"[C]ourts must defer to the employer's decision as\n\nto which qualities required by the job . . . it weighs more heavily.\"). It is uncontested that the\n\nfemale selected for the position did not have a formal educational background that rivaled the\n\nplaintiff's. However, her supervisory experience – including her supervision of the plaintiff and\n\ntemporary occupation of the Deputy Chief position – coupled with the quality of her\n\nperformance as a supervisor were the Agency's proffered reasons for her selection. Further, the\n\n\n\n 47\n\fCourt's comparison of the candidates' employment histories, as already set forth above, does not\n\ndemonstrate that the plaintiff was significantly better qualified. See discussion at 29-31, supra.\n\nAccordingly, the Court will not second-guess the Agency's business decision nor find that its\n\nexplanation for the selection decision is merely a pretext for unlawful retaliation against the\n\nplaintiff. The Court must therefore award summary judgment to the Agency on Count VI of the\n\nsecond amended complaint.\n\n 4. The Plaintiff's 2003 Mid-Year Performance and 2004 Interim Performance\n\nAssessments 20\n\n In Counts XII and XIV of the plaintiff's second amended complaint, he challenges his\n\n2003 mid-year performance assessment and his 2004 interim performance assessment\n\nrespectively. Specifically, in Count XII, he alleges that the Agency retaliated against him by\n\ngiving him a mid-year assessment in July 2003 of \"borderline unacceptable\" performance due to\n\nhis prior protected activity, the Porter I litigation and his EEO activity. Pl.'s Opp'n at 9-10. The\n\nplaintiff contends that his supervisor's rationale for this negative assessment of his performance\n\nwas based on her false representation that the plaintiff \"fail[ed] to complete work in a timely\n\nfashion.\" Id. at 9-10, 48-50. The plaintiff alleges that the supervisor knew about the Porter I\n\nlitigation, as well as his November 2002 EEO complaint, evidenced by the fact she submitted an\n\naffidavit and an addendum to this submission only several days prior to rendering her negative\n\nperformance assessment. Id. at 32-33. In addition, the plaintiff alleges that the oral assessment\n\nwas delivered to him in the presence of a senior manager, although the meeting should have\n\nincluded only the plaintiff and one supervisor. Id. at 10, 30.\n\n20\n The Court will consider these two claims collectively based on their inherent similarities and the\nfact that they suffer from the same defect which forms the basis for the Court's grant of summary\njudgment to the Agency on both claims.\n\n 48\n\f Similarly, in Count XIV of his second amended complaint, the plaintiff alleges that in\n\nSeptember 2004, the Agency retaliated against him for his participation in the identical prior\n\nprotected activity when his supervisor provided him with a \"Notice of Unacceptable\n\nPerformance\" (\"Notice\"), id. at 10, without offering, as he opines was also the case for the 2003\n\nmid-year performance assessment, \"a single legitimate business reason\" for the evaluation, id. at\n\n48. The plaintiff contends that the Notice \"pertained to his 'Executive Support' work objective,\n\nand focused specifically on [the supervisor's] allegations that [he] did not complete tasks in a\n\ntimely fashion,\" which he contends \"were wholly without basis.\" Id. at 48. The plaintiff also\n\ncontends that \"the Notice was accompanied by a Performance Improvement Plan, which entailed\n\na concrete threat of demotion, termination, reassignment or withholding of within grade\n\nincreases.\" Id. at 11. As with his 2003 mid-year assessment, the plaintiff contends the Agency's\n\nrationale for the negative 2004 interim assessment was without merit. Namely, he alleges that\n\nthe Notice was \"rife with misstatements of fact,\" including allegations of non-existent \"'cost\n\noverruns'\" and unfounded criticism of his \"role in the Agency award process,\" which were\n\n\"placed in [his] personnel file.\" Id. at 10-11. The plaintiff alleges that the Notice \"foreshadowed\n\n[his] 'Needs Improvement' final evaluation [he] received . . . followed by a loss of a bonus.\" Id.\n\nat 30-31. The plaintiff contends that both of these assessments amounted to adverse employment\n\nactions because they \"'well might' dissuade a reasonable worker from making or supporting a\n\ncharge of discrimination,\" \"render[ed] [him] significantly more vulnerable to an involuntary\n\ndemotion or separation from the Agency,\" and resulted in him being \"denied eligibility for a\n\nbonus and for a promotion.\" Id. at 29-30.\n\n\n\n\n 49\n\f The Agency responds that the plaintiff cannot maintain claims of retaliation based on his\n\n2003 mid-year and 2004 interim assessments because \"poor performance evaluations are\n\ngenerally not adverse employment actions for purposes of establishing a prima facie case of\n\ndiscrimination or retaliation where, as here, the rating[s] do[] not affect an employee's grade or\n\nsalary or have other materially adverse consequences.\" Def.'s Mem. at 26-27 (citing Russell v.\n\nPrincipi, 257 F.3d 815, 818 (D.C. Cir. 2001); Brown v. Brody, 199 F.3d 446, 458 (D.C. Cir.\n\n1999); Carter v. George Washington Univ., 180 F. Supp. 2d 97, 108-109 (D.D.C. 2001); Mack v.\n\nStrauss, 134 F. Supp. 2d 103, 112-13 (D.D.C. 2001)); Weigert v. Georgetown Univ., 120 F.\n\nSupp. 2d 1, 17 (D.D.C. 2000). The Agency asserts that these assessments resulted in \"no\n\n'tangible harm' or 'materially adverse consequence'\" because they were \"provisional and non-\n\nfinal reviews or assessments.\" Id. at 28. The Court agrees.\n\n As to the issue of causation, the plaintiff initiated Porter I in August 2000. Compl.,\n\nPorter I (D.D.C. Aug. 11, 2000). After a trial on the merits and some post-trial proceedings that\n\nwere resolved adversely to the plaintiff, the District of Columbia Circuit rendered its decision on\n\nthe plaintiff's appeal in Porter I on July 1, 2005, affirming the District Court judgment.\n\nJudgment, Porter I (D.C. Cir. July 1, 2005). As the Court discussed earlier in its analysis of\n\nwhether the plaintiff could maintain his retaliation claim based on his non-selection for the\n\nAdministrative Officer position, because the litigation in Porter I was still in progress when the\n\nplaintiff received the two mid-year and interim job performance assessments complained of here,\n\nthe Court finds that the temporal proximity element of the plaintiff's prima facie case is satisfied.\n\nSee, e.g., Casole, 577 F. Supp. 2d at 140-41 (finding that the plaintiff's protected activity, which\n\nwas ongoing when the alleged retaliation occurred, precluded dismissal based on lack of\n\n\n\n 50\n\fcausation); see also Deravin, 335 F.3d at 204 (\"[D]efending oneself against charges of\n\ndiscrimination – to the extent that such defense involves actual participation in a Title VII\n\nproceeding or investigation – is 'protected activity' within the scope of § 704(a)[,] [i.e., 42 U.S.C.\n\n§ 2000e-3(a),] based on a plain reading of the statute's text.\").\n\n However, neither the plaintiff's 2003 mid-year nor his 2004 interim assessment is the\n\ntype of personnel action that would objectively deter a reasonable employee from making a\n\nclaim of discrimination, Burlington, 548 U.S. at 68, and neither \"'affect[ed] the [plaintiff's] grade\n\nor salary,'\" or occasioned any other \"'significant change in [his] employment status,'\" Taylor v.\n\nSmall, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (finding that the plaintiff could not establish a\n\nprima facie case of employment discrimination under Title VII based on her low performance\n\nevaluation where it did not \"affect[] her grade or salary\" and she \"did not present evidence\n\nsuggesting she suffered any 'significant change in [her] employment status'\" (citation omitted)\n\n(some alterations in original)). Indeed, the 2003 mid-year assessment was delivered orally and\n\ndocumented in his file \"only by the fact of the meeting and not by any particular rating.\" Def.'s\n\nMem. at 28. This is hardly the type of personnel action that can form the basis for a Title VII\n\nclaim.\n\n On the other hand, the 2004 interim assessment was written and, according to the\n\nplaintiff, placed in his personnel file. Pl.'s Opp'n at 11. The plaintiff also contends that both his\n\nmid-year 2003 and interim 2004 assessments contributed to subsequent year-end assessments\n\nand further negative consequences. Pl.'s Opp'n at 10 (\"[T]his [July 2003] rating, which is usually\n\naccompanied by a Performance Improvement Plan, laid the foundation for an annual 'Needs\n\nImprovement' rating . . . at the end of 2003.\" (emphasis added)); id. at 11 (\"As foreshadowed by\n\n\n\n 51\n\fthis [September 2004] Notice of Unacceptable Performance, Mr. Porter received a 'Needs\n\nImprovement' final evaluation in 2004, followed by a loss of a bonus and continued ineligibility\n\nfor a promotion.\" (emphasis added)). Moreover, unlike his 2003 mid-year oral assessment, the\n\nplaintiff claims his 2004 \"Notice of Unacceptable Performance\" coincided with \"a Performance\n\nImprovement Plan, which entailed a concrete threat of demotion, termination, reassignment or\n\nwithholding of within grade increases.\" Pl.'s Opp'n at 11. Yet, as the Agency points out, \"[t]he\n\n2004 performance plan is not a part of the claims in this case,\" Def.'s Reply at 14, and indeed, it\n\nis the actual assessment that the plaintiff now contests. And, assessments that contain \"job-\n\nrelated constructive criticism, which 'can prompt an employee to improve [the employee's]\n\nperformance'\" are not actionable as adverse actions unless a plaintiff can show that they are\n\nlinked \"to financial harms;\" meaning that the assessment \"could affect [the employee's] position,\n\ngrade level, salary, or promotion opportunities.\" Baloch v. Kempthorne, 550 F.3d 1191, 1199\n\n(D.C. Cir. 2008) (finding that letter of counseling, letter of reprimand, and unsatisfactory\n\nperformance review were not the type of evaluations that resulted in actionable financial harms);\n\nWeber, 494 F.3d at 185-86 (stating that negative performance evaluations \"do qualify as adverse\n\nactions insofar as they resulted in [the employee] losing a financial award or an award of leave,\n\nbecause a reasonable jury could conclude that such a loss 'could well dissuade a reasonable\n\nworker from making or supporting a charge of discrimination'\" (citation omitted)). The plaintiff\n\nhas made no such showing here.\n\n Specifically, the plaintiff has not shown how the mid-year and interim performance\n\nassessments could not have been remedied by improved performance that presumably would\n\nhave averted any financial harm or other negative employment consequences prior to his year-\n\n\n\n 52\n\fend evaluations. See Russell, 257 F.3d at 818 (\"Performance evaluations are likely to be\n\n'[i]nterlocutory or mediate decisions having no immediate effect upon employment.' The result\n\nof an evaluation is often speculative, making it difficult to remedy.\" (citation omitted)). While it\n\nis understandable why the plaintiff is unhappy with the two negative assessments, \"not\n\neverything that makes an employee unhappy is an actionable adverse action.\" Russell, 257 F.3d\n\nat 818 (stating performance evaluations are unlikely to be actionable as adverse actions). Both\n\nassessments appear to be among \"those petty slights or minor annoyances that often take place at\n\nwork and that all employees experience.\" Burlington, 548 U.S. at 69; accord Page v. Bolger, 645\n\nF.2d 227, 233 (4th Cir. 1981) (holding that \"steps in a process for making such obvious end-\n\ndecisions as those to hire, to promote, etc.\" are among those \"many interlocutory or mediate\n\ndecisions having no immediate effect upon employment conditions which were not intended to\n\nfall within the direct proscriptions of . . . Title VII\"). Such is the case with the interim and mid-\n\nyear assessments of the plaintiff's performance, because alone, neither caused the plaintiff any\n\nactionable harm. As the Agency points out, \"a 'mid-cycle review' is not even a rating or\n\nevaluation under [the Agency's] rules,\" and \"unless the employee requests otherwise, 'interim\n\nevaluations are retained in the operating unit and not submitted to the Office of Human\n\nResources for filing in an employee’s Official Evaluation File.'\" Def.'s Mem. at 29. Although\n\nthe plaintiff maintains that the Agency put his 2004 interim assessment in his personnel folder,\n\nPl.'s Opp'n at 11, since his grade or salary went unaffected until he received his final 2004\n\nassessment, it is difficult to discern how the plaintiff could maintain that the 2004 interim\n\nassessment, and not his 2004 final assessment, is the event that \"'affect[ed] [his] grade or salary.'\"\n\nTaylor, 350 F.3d at 1293 (citation omitted). An employment decision which merely \"la[ys] the\n\n\n\n 53\n\ffoundation\" for another employment decision which has grade or salary consequences, Pl.'s\n\nOpp'n at 10, is not actionable because it had \"no immediate effect upon [the plaintiff's]\n\nemployment conditions,\" Page, 645 F.2d at 233. The two interim performance assessments were\n\nessentially nothing more than warnings that future negative final assessments could be\n\nforthcoming if the plaintiff did not improve his performance, as compared to actions with \"direct,\n\nmeasurable, and immediate effect[s].\" Russell, 257 F.3d at 819.\n\n The plaintiff also alleges that the presence of a second superior when his 2003 mid-year\n\nassessment was provided to him was improper and amounted to an adverse employment action.\n\nPl.'s Opp'n at 10. However, the record is devoid of any internal \"Agency policy,\" id., or other\n\nsuch authority from which the Court could find that the presence of more than one of the\n\nplaintiff's superiors at a meeting to discuss his job performance was improper. And the Court\n\nfails to see how the simple presence of two supervisors, instead of one, somehow rendered the\n\nmeeting anything other than \"private.\" Id. In any event, the presence of the additional\n\nsupervisor did not amount to an adverse employment action. Thus, the Court must award\n\nsummary judgment to the Agency on Counts XII and XIV of the plaintiff's second amended\n\ncomplaint.\n\n IV. CONCLUSION\n\n For all of the reasons set forth above, Counts VII, IX, XI, and XIII, as well as on the race\n\ndiscrimination claim asserted in Count V are dismissed with the plaintiff's consent. In addition,\n\nthe Court must grant summary judgment to the Agency on the merits with respect to all of the\n\nremaining counts of the second amended complaint. 21\n\n\n21\n An Order consistent with the Court’s ruling accompanies this Memorandum Opinion.\n\n\n 54\n\fSO ORDERED this 9th day of March, 2009.\n\n ________/s/_______________\n REGGIE B. WALTON\n United States District Judge\n\n\n\n\n 55\n\f", "ocr": false, "opinion_id": 2668487 } ]

[ "243 F. App'x 505" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.ca11.uscourts.gov/unpub/ops/200710236.pdf", "author_id": null, "opinion_text": " [DO NOT PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FILED\n FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS\n ________________________ ELEVENTH CIRCUIT\n JULY 6, 2007\n No. 07-10236 THOMAS K. KAHN\n Non-Argument Calendar CLERK\n ________________________\n\n D.C. Docket No. 02-00755-CV-5-CLS\n\nSHERRYL SNODGRASS CAFFEY,\n\n\n\n Plaintiff-Appellant,\n\n versus\n\nLIMESTONE COUNTY, AL, its agents, officers,\nemployees, successors in office, and all persons acting in\nconcert or in participation in the matters complained of\nherein, individually, and in their official capacities,\n\nLIMESTONE COUNTY COMMISSION, consisting of:\nStanley Menefee, David Seibert, Tommy Raby, Bill\nLatimer, and Gerald Barksdale, in their official capacities,\n\nMIKE BLAKELY,\n\nALLEN CRAIG, individually, and in their official\ncapacities as Sheriff and Deputy Sheriff of\nLimestone County respectively,\n\n\n Defendants-Appellees.\n\f ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n _________________________\n\n (July 6, 2007)\n\nBefore DUBINA, CARNES and HULL, Circuit Judges.\n\nPER CURIAM:\n\n This is the third appeal in this case. In this appeal, Sherryl Snodgrass\n\nCaffey, an attorney proceeding pro se, appeals the district court’s August 31, 2006\n\nand December 13, 2006 orders granting summary judgment in favor of the only\n\nremaining defendants: Limestone County, Alabama; the Limestone County\n\nCommissioners, in their official capacity; Limestone County Sheriff Mike Blakely,\n\nindividually and in his official capacity; and Deputy Sheriff Allen Craig,\n\nindividually and in his official capacity. After review, we affirm.\n\n I. BACKGROUND\n\nA. Complaint\n\n On March 25, 2002, Caffey filed her initial complaint, which she\n\nsubsequently amended, naming as defendants several state and local officials,\n\nincluding the four defendants named above. In her amended complaint, which\n\nincorporated by reference the claims in her initial complaint, Caffey alleged\n\n\n\n 2\n\fnumerous constitutional violations under 42 U.S.C. § 1983 and violations of state\n\nlaw. All of her claims arose out of an incident in which Caffey, an attorney, was\n\nheld in contempt of court and incarcerated for approximately twenty-four hours in\n\nthe Limestone County Jail.\n\n With particular relevance to this appeal is Caffey’s claim that the conditions\n\nof her confinement violated the Eighth Amendment’s prohibition against cruel and\n\nunusual punishment. This claim was asserted against only the four defendants\n\nnamed above. Specifically, Caffey’s amended complaint alleged that she was\n\nhumiliated by being placed in solitary confinement in the all-male section of the\n\njail with a window in her cell that allowed male inmates, jailers, and visitors to\n\nobserve her at all times, including while she used the toilet or got undressed. In\n\naddition, Caffey’s amended complaint alleged that a camera in her cell was\n\nwatched only by men and allowed male jailers to observe her at all times. Caffey’s\n\namended complaint further alleged that the window and camera allowed male\n\njailers and inmates to invade her privacy and to taunt her with lewd and obscene\n\nstatements and gestures. According to Caffey’s amended complaint, the\n\ndefendants “maintained a policy, custom and practice of incarcerating inmates\n\nunder unlawful and humiliating conditions,” and, as a result, “she was subjected to\n\ncruel and unusual punishment in violation of the 8th Amendment to the United\n\n\n\n 3\n\fStates Constitution by being incarcerated in the all male section of the jail in a\n\nwindowed cell and with a camera manned by men trained on her at all times.”\n\nCaffey also alleged that, as a result of these conditions, she endured severe mental\n\nanguish and emotional distress.\n\nB. Two Prior Appeals\n\n Following the defendants’ motions to dismiss, the district court entered an\n\norder dismissing all of Caffey’s claims in both her original and amended\n\ncomplaints based upon the Rooker-Feldman doctrine.1 On appeal, this Court\n\naffirmed the district court’s dismissal as to all claims except for Caffey’s Eighth\n\nAmendment claim and one state law claim related to prison conditions. See Caffey\n\nv. Alabama, No. 02-15271 (11th Cir. Mar. 6, 2003). This Court remanded the case\n\nto the district court for further proceedings on the remaining claims.\n\n On remand, after giving the parties an opportunity to submit additional\n\narguments, the district court, sua sponte, dismissed Caffey’s Eighth Amendment\n\nclaim, pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court also\n\ndeclined to exercise supplemental jurisdiction over the remaining state law claim,\n\nwhich it dismissed without prejudice. Caffey again appealed to this Court.\n\n\n 1\n See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82, 103 S. Ct.\n1303, 1311-15 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 150\n(1923).\n\n\n 4\n\f In Caffey’s second appeal, this Court reversed, concluding that only one of\n\nCaffey’s challenges to the conditions of her confinement, namely, her “opposite-\n\nsex viewing claim,” stated a cause of action and survived Rule 12(b)(6).2 Caffey v.\n\nLimestone County, Ala., No. 04-13822, slip op. at 17-18 (11th Cir. Mar. 9, 2005).\n\nThis Court summarized the scope of Caffey’s claim: “What Caffey is effectively\n\ncomplaining about is having to expose her sexual organs to members of the\n\nopposite sex when she undressed or used the toilet in solitary confinement.” Id. at\n\n10. After reviewing the specifics of Caffey’s claims, this Court concluded that, for\n\npurposes of Rule 12(b)(6), “Caffey’s allegations of a malicious, on-going practice\n\nof opposite-sex viewing without any penological purpose done to harass or\n\nhumiliate states a claim under the Eighth Amendment.” Id. at 17. This Court\n\nexplicitly noted, however, that “[o]n remand, it may become clear that the\n\ninvasions of bodily privacy are not as severe as alleged, that there are valid reasons\n\nfor placing Caffey in the all-male section of the jail, or that the opposite-sex\n\nmonitoring of Caffey was not done pursuant to a policy or practice established to\n\nhumiliate and harass female inmates.” Id. Accordingly, this Court vacated the\n\ndistrict court’s order dismissing the case and remanded only the opposite-sex-\n\n\n\n\n 2\n This Court affirmed the dismissal of Caffey’s other challenges to the conditions of her\nconfinement, such as her claims based on the quality of the food and the comfort of the bedding.\n\n 5\n\fviewing claim for further proceedings consistent with its opinion.3\n\nC. Current Proceedings\n\n On remand, the defendants each filed motions for summary judgment. On\n\nAugust 31, 2006, the district court entered a memorandum opinion and order\n\ngranting summary judgment to: (1) Deputy Sheriff Craig, because Caffey had\n\nfailed to present any evidence that Craig had contact with Caffey once she was at\n\nthe jail or that he was responsible for the conditions of her confinement; (2) Sheriff\n\nBlakely, in his official capacity, because he was entitled to Eleventh Amendment\n\nimmunity; and (3) the Limestone County defendants, because these defendants had\n\nno control over the daily operations of the Limestone County Jail and, therefore,\n\ncould not be held liable under § 1983.\n\n As for Caffey’s Eighth Amendment claim against Sheriff Blakely in his\n\nindividual capacity, the district court reserved ruling on this part of Defendant\n\nBlakely’s motion for summary judgment and ordered the parties to submit\n\nsupplemental briefing. On December 13, 2006, after the parties submitted their\n\nsupplemental briefs, the district court entered a memorandum opinion and order\n\ngranting summary judgment on Caffey’s Eighth Amendment claim against\n\n\n 3\n This Court also directed the district court to readdress its jurisdiction over the remaining\nstate law claim on remand. On remand, the district court again declined to exercise its\nsupplemental jurisdiction over the claim and dismissed the claim without prejudice. Caffey does\nnot challenge this ruling on appeal.\n\n 6\n\fDefendant Blakely in his individual capacity based on qualified immunity.\n\n Caffey now appeals the district court’s August 31, 2006 and December 13,\n\n2006 orders granting summary judgment to all defendants.\n\n II. DISCUSSION\n\n On appeal, Caffey argues that the district court erred by granting summary\n\njudgment to the defendants.4 Although each defendant raised various defenses or\n\nimmunities to Caffey’s claims, we need not address those defenses here because\n\nwe conclude that Caffey has failed to present evidence of a violation of her Eighth\n\nAmendment rights.\n\n This Court has recognized that inmates have a constitutional right to bodily\n\nprivacy and that the involuntary exposure of their genitals in the presence of\n\nmembers of the other sex states a claim for violation of privacy rights under\n\nFortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993), but does not state a claim for\n\nan Eighth Amendment violation where there is only de minimis injury. See Boxer\n\nX v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006) (concluding that “a female\n\nprison guard’s solicitation of a male prisoner’s manual masturbation” stated a\n\n\n\n 4\n We review de novo the district court’s grant of summary judgment, drawing all facts and\ninferences in the light most favorable to the non-moving party. See Bircoll v. Miami-Dade\nCounty, 480 F.3d 1072, 1081 n.12 (11th Cir. 2007). Summary judgment is appropriate if there is\nno genuine issue of material fact and the moving party is entitled to judgment as a matter of law.\nId.\n\n 7\n\fclaim for violation of the plaintiff’s privacy rights under Fortner but failed to state\n\na claim under the Eighth Amendment), cert. denied, __ U.S. __, 127 S. Ct. 1908\n\n(2007). The problem for Caffey is her appeal is before us on only an Eighth\n\nAmendment claim.5\n\n For several reasons, we conclude that Caffey failed to produce sufficient\n\nevidence by which a reasonable jury could find a violation of her Eighth\n\nAmendment rights, and therefore, that the district court did not err in granting\n\nsummary judgment to the defendants.\n\n First, the mere fact that Caffey was placed in a holding cell that had a\n\nwindow on the door and a camera in the cell for surveillance does not establish an\n\nEighth Amendment violation. See Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir.\n\n1995). The uncontroverted evidence in the record shows that these specific\n\nsecurity measures were implemented for valid, penological reasons, namely, to\n\nmonitor inmates in holding cells in order to protect those who might become ill or\n\nattempt to harm themselves. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.\n\n2003) (explaining that, in certain circumstances, correctional officers are under a\n\nduty to monitor inmates). Moreover, there was no evidence presented that Caffey\n\nwas placed in the holding cell for a malicious purpose, such as to view her while\n\n\n 5\n Caffey has not brought a claim for violation of her constitutional right to bodily privacy\nunder Fortner.\n\n 8\n\fnaked or otherwise humiliate her. Thus, we agree with the district court that the\n\nopposite-sex monitoring of Caffey by prison guards during her twenty-four hour\n\nstay in the holding cell, either through the window or the camera, does not amount\n\nto a deprivation of Caffey’s Eighth Amendment rights.6\n\n Second, Caffey’s Eighth Amendment claim complains only about exposure\n\nof her genitals when she used the toilet and when a female guard came into the cell\n\nand required her to take off her pantyhose. However, there is simply no evidence\n\nin this record that any opposite-sex viewing by unattended male inmates and\n\nvisitors ever occurred at a time when Caffey exposed her genitals during her\n\ntwenty-four hour stay. Although Caffey presented evidence indicating that\n\nunattended male inmates and visitors passed in front of her cell in violation of jail\n\npolicy, and that these males could see into all areas of Caffey’s cell, including the\n\ntoilet,7 there is no evidence that a male inmate or visitor ever watched Caffey at the\n\nmoment that she used the toilet or got undressed.\n\n Finally, even if we construe the evidence in the record to support an\n\n\n 6\n Caffey, an attorney held in contempt of court, was in a holding cell by herself in the\nadministrative area on the first floor of the jail because, in part, the jail was concerned for her\nsafety.\n 7\n Although the defendants presented evidence that the toilet could not be seen from the\nwindow or through the surveillance camera, Caffey presented evidence that the toilet could be\nseen. At the summary judgment stage, we must construe the evidence in the light most favorable\nto Caffey. Thus, we assume that the toilet could be seen by anyone looking through the window\nto the holding cell or watching the monitors from the surveillance camera.\n\n 9\n\finference that unattended male inmates and visitors did briefly observe Caffey\n\nwhile she exposed her genitals, there is no evidence that Caffey suffered more than\n\nde minimis injuries. See Boxer X, 437 F.3d at 1111. In light of Boxer X, we\n\ncannot say that Caffey has presented evidence of an injury that is “objectively,\n\nsufficiently serious” enough to support an Eighth Amendment claim. Id. Indeed,\n\nthis case involves conduct that is much less egregious conduct than what amounted\n\nto only a de minimis injury in Boxer X and is insufficient to support a claim for a\n\nviolation of Caffey’s Eight Amendment rights.\n\n III. CONCLUSION\n\n For all these reasons, we conclude that the district court did not err in\n\ngranting summary judgment to the defendants on Caffey’s Eighth Amendment\n\nclaim.8\n\n AFFIRMED.\n\n\n\n\n 8\n Caffey also argues that the district court erred in denying: (1) her motion for default\njudgment; and (2) her motion to vacate the district court’s August 31, 2006 order. We conclude,\nwithout further discussion, that the district court did not err in denying these motions.\n Additionally, although Caffey noticed her intent to appeal the district court’s January 25,\n2006 order denying her motion to compel and its September 29, 2006 order striking her\nsupplemental brief, she has failed to raise any argument about these orders in her brief.\nAccordingly, we find that she has waived these issues on appeal. See Mathews v. Crosby, 480\nF.3d 1265, 1268 n.3 (11th Cir. 2007).\n\n 10\n\f", "ocr": false, "opinion_id": 54296 } ]

[ "237 F. App'x 441" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "http://www.ca11.uscourts.gov/unpub/ops/200614684.pdf", "author_id": null, "opinion_text": " [DO NOT PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FILED\n FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS\n ________________________ ELEVENTH CIRCUIT\n JUNE 6, 2007\n No. 06-14684 THOMAS K. KAHN\n Non-Argument Calendar CLERK\n ________________________\n\n D. C. Docket No. 05-00017-CR-HL-6\n\nUNITED STATES OF AMERICA,\n\n\n Plaintiff-Appellee,\n\n versus\n\nMARTIN L. HARRELL,\n\n Defendant-Appellant.\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n _________________________\n\n (June 6, 2007)\n\nBefore BIRCH, BLACK and MARCUS, Circuit Judges.\n\nPER CURIAM:\n\f Martin Ladon Harrell appeals his sentence of restitution in the amount of\n\n$319,145.10, imposed following convictions for conspiracy to interfere with\n\ninterstate commerce by threats, intimidation, and extortion, conspiracy to commit\n\narson and mail fraud, arson, witness tampering, and misleading statements under\n\n18 U.S.C. §§ 371, 844(i), 1341, 1512(b)(1), 1512(b)(3), and 1951(a)(1). Because it\n\nis not clear from the record that Harrell understood the full significance of the\n\nappeal waiver in his plea agreement, we will not enforce the waiver against him.\n\nNevertheless, because the Mandatory Victim and Restitution Act of 1996, 18\n\nU.S.C. § 3663A (“MVRA”), required the district court to order restitution in this\n\ncase, it did not commit plain error by doing so. Accordingly, we AFFIRM the\n\ndistrict court’s order of restitution in this case.\n\n I. BACKGROUND\n\n In 2005, Harrell, with Dexter Harrison and Charles L. Harrell (“Charles”),\n\nwas indicted in a 13-count superceding indictment. In the indictment, Harrell and\n\nCharles were jointly charged with conspiring to interfere with interstate commerce\n\nby threats, intimidation, and extortion, in violation of 18 U.S.C. § 1951(a)(1)\n\n(Count 1), and interfering with interstate commerce by threats, intimidation, and\n\nextortion, in violation of 18 U.S.C. § 1951(a)(1) (Count 2). Harrell was separately\n\ncharged with interstate travel in aid of racketeering, in violation of 18 U.S.C.\n\n\n\n 2\n\f§ 1952(a) (Count 3). Harrell and Harrison were jointly charged with:\n\n(1) conspiring to commit arson and mail fraud, in violation of 18 U.S.C. §§ 371,\n\n844(I), and 1341 (Count 5); (2) mail fraud, in violation of 18 U.S.C. § 1341 (Count\n\n6); and (3) arson, in violation of 18 U.S.C. § 844(i), and 2 (Count 7). Harrell was\n\nalso separately charged in the indictment with: (1) three counts of witness\n\ntampering, in violation of 18 U.S.C. § 1512(b)(1) (Counts 8, 9, and 10); (2) an\n\nadditional count of interference with interstate commerce by threats, intimidation,\n\nand extortion, in violation of 18 U.S.C. § 1951(a) (Count 11); and (3) making\n\nmisleading statements, in violation of 18 U.S.C. § 1512(b)(3) (Count 12).\n\nFinally, the indictment also separately charged Charles with witness tampering, in\n\nviolation of 18 U.S.C. § 1512(b)(3) (Count 4), and charged Harrison with making\n\nmisleading statements, in violation of 18 U.S.C. § 1512(b)(3) (Count 13).\n\n Thereafter, the court severed the counts in the indictment into three separate\n\ntrials according to their relevance to each other. Specifically, the court ordered that\n\nCounts 4-10 and 12-13 would be tried first, and that later, separate trials would be\n\nheld on Counts 1-3, and on Count 11.\n\n At the first trial, Harrell was convicted under Counts 5, 7, 10, and 12, but\n\nwas acquitted of Counts 6, 8, and 9. Subsequently, before any additional trial was\n\nheld, Harrell pled guilty to Count 1 in exchange for the dismissal of Counts 2, 3,\n\n\n\n 3\n\fand 11. In his plea agreement, Harrell “knowingly and voluntarily” agreed to\n\nwaive his right to appeal his convictions or sentences on any of the counts of\n\nconviction from the trial or following his guilty plea, unless his sentence exceeded\n\nthe guideline range. R3-318 at 4. The district court entered written findings\n\nfollowing a change of plea hearing, finding, among other things, that Harrell had\n\nknowingly and willingly waived “the right to appeal any verdict of guilty and to be\n\nrepresented on appeal by counsel.” R3-320 at unnumbered 2. A transcript from\n\nthe change of plea hearing is not included in the record.\n\n According to the Presentence Investigation Report (“PSI”), in 2000, Harrell\n\nentered into a contract with Bill Chandler to raise cattle. At the conclusion of the\n\ncontract, Harrell believed Chandler was not paying him what he was due and\n\nthreatened him with bodily injury. Thereafter, Harrell and his father, Charles,\n\nconspired with two other men who lured Chandler from his home and then\n\nassaulted him. Chandler fought the men off, and one of the men was eventually\n\napprehended.\n\n In 2001, Harrell entered into a conspiracy with Harrison to burn down a\n\nmotel owned by Harrison. On 7 January 2002, Harrell sprayed a mixture of diesel\n\nfuel and gasolene in five interior areas of the motel, including near a natural gas\n\nline, and left containers of fuel throughout these areas. At that time there were 16\n\n\n\n 4\n\fguests in the motel and 1 employee. Although all of the guests exited the motel,\n\none of them suffered smoke inhalation that required treatment. The PSI also noted\n\nmisrepresentations made by Harrell during the investigation of the arson, as well as\n\nHarrell’s attempt to get his wife to stop assisting the authorities. Following the\n\narson, Harrison’s insurer paid him $319,145 for the damage to the motel.\n\n To calculate Harrell’s offense level, the PSI divided the counts of conviction\n\ninto three groups. In its calculation, the PSI added enhancements for: (1) Harrell’s\n\nrole as a leader under Count 1; and (2) obstruction of justice under all three groups.\n\nAfter applying the multiple count adjustment, the PSI assigned Harrell a total\n\noffense level of 34. Although the PSI listed some criminal conduct and arrests, it\n\nlisted no criminal convictions and assigned Harrell zero criminal history points and\n\na criminal history category of I. With a total offense level of 34 and a criminal\n\nhistory category of I, the PSI calculated a guideline sentencing range of 151 to 188\n\nmonths.\n\n The PSI advised that the Court was required to order restitution pursuant to\n\n18 U.S.C. § 3663(a). In this regard, the PSI noted that the injured motel guest had\n\nnot submitted any statement of financial loss and reiterated that the insurer’s total\n\nloss was $319,145.10. The PSI also noted that the advisory guidelines required\n\nthat restitution be paid, under U.S.S.G. § 5E1.1.\n\n\n\n 5\n\f The government filed numerous objections to the PSI, including objecting to\n\nthe restitution amount. Specifically, the government argued that Harrell should\n\nalso have to pay the attorney’s fees stemming from a civil suit filed by Harrison\n\nagainst the insurer following the fire. The probation officer responded, arguing\n\nthat there was no evidence that Harrell had participated in Harrison’s attempt to get\n\nmore money from the insurer for the repairs to the motel, and that Harrison’s\n\nactions in this regard were unrelated to Harrell’s actions.\n\n Harrell objected to statements made in the PSI regarding conduct not\n\nincluded in the offense’s relevant conduct, and argued that he should have received\n\nan adjustment for acceptance of responsibility. In response, the probation officer\n\nargued that the adjustment was not appropriate because Harrell had been convicted\n\non several counts and had been given an adjustment for obstruction of justice.\n\n At the sentencing hearing, the court heard from witnesses called by both the\n\ngovernment and the defense. Thereafter, the government argued its objections to\n\nthe PSI, concluding by noting that the question of the amount of restitution was\n\nstill open. In response, Harrell’s counsel noted that Harrell had been acquitted of\n\nmail fraud and argued that the civil suit against the insurer had been initiated solely\n\nby Harrison and Harrell did not benefit from it. In conclusion, Harrell’s counsel\n\nasked the court to adopt the recommendations in the PSI, particularly regarding the\n\n\n\n 6\n\fissue of restitution and upward departure. The government then argued that\n\nHarrell should be held responsible for some of the attorney’s fees because he was\n\ndeposed in the civil suit and could have told the insurer that the suit was a sham.\n\n After Harrell addressed it in allocution, the court overruled the government’s\n\nobjections and found that the guideline range was 151-188 months of\n\nimprisonment. However, the court then sentenced Harrell to a total sentence of\n\n240 months of imprisonment. The court stated, among other things, that it had\n\ndetermined that a 240-month sentence was appropriate and complied with the 18\n\nU.S.C. § 3553(a) sentencing factors, specifically listing several of those factors.\n\nThe court also ordered Harrell to pay $319,145.10 in restitution. The court also\n\nnoted that Harrell had “knowingly and voluntarily waived [his] statutory right to\n\nappeal with certain exceptions specified in [his] plea agreement, even as to the\n\ncounts for which [he was] sentenced at the jury trial,” but still cautioned him that if\n\nhe did mean to file an appeal he had to do so within 10 days. R6-56. Finally, after\n\nconsulting with the probation officer, the court, among other things, expressly\n\noverruled Harrell’s request for an acceptance of responsibility adjustment, and\n\nclarified that it had imposed a variance in his sentence, not a departure.\n\n Thereafter, the court entered a written judgment in accordance with its oral\n\nsentence, and dismissing Counts 2, 3, 6, 8, 9, and 11. Harrell timely appealed.\n\n\n\n 7\n\f II. DISCUSSION\n\nA. Whether Harrell waived his right to appeal his sentence\n\n Although Harrell does not address this issue, the government briefly argues\n\nthat because Harrell executed a plea agreement containing an appeal waiver as to\n\nall of the counts of conviction, and because the waiver “was explained to him on\n\nthe record by the district court during his plea colloquy,” he has waived his right to\n\nappeal. Appellee’s Br. at 8.\n\n We review the waiver of the right to appeal de novo. United States\n\nv. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997) (citation omitted).\n\nAppeal waivers are valid if they are made knowingly and voluntarily. United\n\nStates v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). For an appeal waiver to\n\nbe enforced, the government must show that either: (1) the district court\n\nspecifically questioned the defendant concerning the appeal waiver during the plea\n\nhearing, or (2) it is manifestly clear from the record that the defendant otherwise\n\nunderstood the full significance of the waiver. Id. at 1351.\n\n Here, the government has failed to satisfy the first prong of the test in\n\nBushert because there is no transcript of the change of plea hearing in the record.\n\nThe government does not address the second prong in its brief, and the record\n\nshows only that: (1) the plea agreement contains a waiver and states that Harrell\n\n\n\n 8\n\funderstands that waiver; (2) the probation officer believed it had been entered\n\nknowingly and voluntarily; and (3) the court also believed the waiver was knowing\n\nand voluntary. Outside the plea agreement, the record does not include any\n\nstatement by the defendant that clarifies whether he understood the waiver’s full\n\nsignificance. We have held that the text of the plea agreement itself is not\n\nsufficient to show that the waiver was knowing and voluntary. Id. at 1352.\n\nAccordingly, because “a thorough review of the record [does not] yield any\n\nindication that [Harrell] otherwise understood the full significance of his sentence\n\nappeal waiver,” we will not enforce the waiver. See id. at 1353.\n\nB. Whether the district court plainly erred in sentencing Harrell to pay\n restitution\n\n On appeal, Harrell argues that the district court erred in holding him liable\n\nfor the “restitution regarding the insurance proceeds” the insurer paid to Harrison,\n\nas he was acquitted of the mail fraud charge and did not receive any of the\n\nproceeds of the fraud.1 Appellant’s Br. at 14. He argues that this conclusion is\n\nsupported by the fact that only Harrison was sentenced to repay the attorney’s fees\n\nthat resulted from the civil litigation regarding the repairs.\n\n\n\n\n 1\n He also argues that the government has conceded this error. As the government argues\nin its brief in response, however, this appears to be based on a misinterpretation of the\ngovernment’s arguments at sentencing.\n\n 9\n\f Because Harrell did not object to the restitution sentence in any way before\n\nthe district court, we will only review this issue for plain error. See United States\n\nv. Hasson, 333 F.3d 1264, 1276 (11th Cir. 2003) (citations omitted). Accordingly,\n\nHarrell must establish that: (1) an error occurred; (2) it is plain; (3) it affects his\n\nsubstantial rights; and (4) it seriously affected the fairness and integrity of the\n\nproceedings. See id. (citation omitted).\n\n Under the MVRA, where a defendant is convicted of, among other things, a\n\nfelony offense against property, the district court is required to “order, in addition\n\nto . . . any other penalty authorized by law, that the defendant make restitution to\n\nthe victim of the offense.” 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). The MVRA\n\nspecifies that, in the case of an offense against property where no part of the\n\nproperty can be returned, the order of restitution must require the defendant to pay\n\nan amount equal to “the value of the property on the date of the damage, loss, or\n\ndestruction.” 18 U.S.C. § 3663A(b)(1)(B)(i)(II).\n\n In this case, Harrell was convicted of conspiring to commit arson and of\n\ncommitting arson. The hotel that burned was not considered the victim in the PSI\n\nbecause the arson was committed with the intent of defrauding the building’s\n\ninsurer. Thus, the restitution amount identified in the PSI was the amount paid out\n\nby the insurer. This was in compliance with the MVRA and was not error, let\n\n\n\n 10\n\falone plain error. See Hasson, 333 F.3d at 1276 (citation omitted) (stating that “a\n\nsentencing court does not commit plain error by relying on factual findings\n\ncontained in the [PSI] regarding a defendant’s ability to pay restitution”). The\n\nattorney’s fees figure that was ordered paid by Harrison is irrelevant to Harrell as\n\nhe was not implicated in the suit against the insurer. Thus, the district court did not\n\nerr in ordering restitution.\n\n III. CONCLUSION\n\n The government’s insistence that Harrell’s appeal be dismissed because of a\n\nvalid appeal waiver is not adequately supported by the record. On consideration of\n\nthe merits of Harrell’s appeal wherein he challenges the sentencing court’s order of\n\nrestitution, we find no reversible error. Accordingly, the sentence is AFFIRMED.\n\n\n\n\n 11\n\f", "ocr": false, "opinion_id": 53455 } ]

[ "163 Cal. App. 2d 440" ]

[ { "author_str": "Van Dyke", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6392, "opinion_text": "\n163 Cal. App. 2d 440 (1958)\nBOARD OF TRUSTEES OF THE WOODLAND UNION HIGH SCHOOL DISTRICT OF YOLO COUNTY, Respondent,\nv.\nRUSSELL S. MUNRO, as Director of the Department of Alcoholic Beverage Control, et al., Defendants and Appellants; THOMAS P. RALEY, Intervener and Appellant.\nCiv. No. 9372. \nCalifornia Court of Appeals. Third Dist. \nSept. 11, 1958.\n Edmund G. Brown, Attorney General, E. G. Funke, Assistant Attorney General, William T. Chidlaw and Robert W. Baker, Deputy Attorneys General, for Defendants and Appellants.\n Downey, Brand, Seymour & Rohwer for Intervener and Appellant.\n Anthony B. Avilla, District Attorney (Yolo), and Harry A. Ackley, Deputy District Attorney, for Respondent. *442\n VAN DYKE, P. J.\n This is an appeal from a judgment of the Superior Court for Yolo County, decreeing that a writ of mandate should issue against the appellant department and the appellant board, directing them to reverse their determination that a general off-sale liquor license should issue to Thomas P. Raley, the real party in interest. The basic question presented on this appeal is whether or not the Department of Alcoholic Beverage Control prejudicially abused its administrative discretion in granting the license.\n The department made the following findings of fact: The proposed premises consist of a supermarket located in a neighborhood shopping center at the southeast corner of College Street and Granada Drive in the South Land Park area near the southerly outskirts of Woodland. The premises in question constitute one of a chain of eight Raley food markets, seven of which are located in Sacramento County, and all, or most of them, are licensed for off- sale general alcoholic beverages. There are presently no alcoholic beverage licenses in force in the vicinity of the premises. The applicant's store building is situated in the southerly part of the shopping center, and there is an adjacent main parking area immediately to the north of the applicant's building which is shared with patrons of a drive-in restaurant located at the corner of College Street and Granada Drive and with patrons of other retail stores in the shopping center. Immediately to the south of, and adjacent to, the proposed premises is another parking area reserved for the exclusive use of the applicant's customers. The main entrance to the applicant's store faces College Street, while a secondary entrance faces the general parking area to the north of the building. The nearest school to the proposed premises is the Woodland Union High School, located to the north of the premises and occupying land on both sides of College Street. The distance from the nearest point of the premises and the nearest point of the school property is approximately 365 feet. The evidence shows that the school board has under consideration the enlargement of the high school campus, which, although it occupies large areas of land on both sides of College Street lying to the north of the proposed premises, appears to be too small for present or proposed enlarged school activities. The distance from the proposed premises to the nearest point on school property could, by the additional school facilities proposed, be reduced to approximately 300 feet. Present enrollment of Woodland Union High School is approximately 1,000 students, which include age *443 groups ranging from 13 to 19. The 19-year-old group would constitute but a small fraction of the enrollment. A considerable number of students frequent the area near the proposed premises by reason of their patronage of the drive-in restaurant and their purchases of ice cream and candy bars at applicant's store. Complaints of the neighboring residents have been directed toward the practice of these students discarding papers such as candy wrappers and other debris around the shopping center during the noon lunch period, after school hours and during evening when sports events are held at the school. There is insufficient evidence to show that the package sale of alcoholic beverages by applicant would aggravate this litter problem or that consumption in public of alcoholic beverages in the vicinity is, or would be of such proportions as to add appreciably to the litter. The evidence shows that by far the greatest number of sales of alcoholic beverages sold at other markets of similar type, operated by applicant, are made in conjunction with purchase of grocery items for consumption at the purchasers' homes. The applicant does not propose to sell alcoholic beverages from open shelves or refrigerators accessible to patrons on a self-service basis as is usual in his other and in most food stores of this kind, but he has submitted a revised floor plan whereby refrigerated beer, wines and so-called hard liquors will be sold only at a separate department located at the front of the store in the southwest corner and outside the check stands. Persons desiring to purchase alcoholic beverages will only be able to procure them at this portion of the store, which will be in charge of a clerk at all times that the liquor department is open for business. The proposed arrangement should effectively minimize the possibility of theft of alcoholic beverages by high school students or others, and will safeguard against inadvertent sale of alcoholic beverages to minors by clerks at the food-checking stands at times when they are busy with customers purchasing large lots of groceries. A children's public playground will, at some time in the future, occupy a park area proposed to be constructed across College Street and opposite the proposed premises. The evidence does not show what portion of this proposed public park will be used for playground purposes such as swings and other play equipment. The width of College Street intervening between the proposed premises and the proposed park area is approximately 60 feet from curb to curb. A municipal swimming pool, which is patronized by increasing numbers of adults, *444 students and other children to the extent of a total of 43,548 persons in 1955, is located to the northwest and across College Street from the premises in question, at a distance of about 400 feet airline measured from the nearest portion of the applicant's store building to the nearest point of the swimming pool enclosure. This pool is surrounded by a high wall and, with the exception of the upper portions of bleacher seats located against the south wall of the pool enclosure, the view of the proposed premises from the pool area is effectively blocked. The American Lutheran Church, with a total membership of about 530 persons, and holding the usual services on Sundays and meetings on most week nights is located on the west side of College Street and across the street from the proposed premises at a distance of about 171 feet from the nearest point of the applicant's building to the nearest corner of the church property. An additional distance of about 25 feet to the nearest church entrance makes the distance about 196 feet. It is proposed to construct a Y.M.C.A. building in about two to three years on the lot adjacent to and south of the church across the street from the proposed premises, at a distance of about 150 feet from the premises, measured by direct line between the respective buildings. There is no substantial evidence to show that the granting of a license for the off-sale of packaged alcoholic beverages would, under the method of operation proposed, constitute an undue moral hazard to the students of the high school, the church activities of the persons attending the church, or juveniles using the facilities of the proposed playground or the proposed Y.M.C.A. The premises in question are located on Lot 16 of Block 4 in the tract known as South Land Park. By a \"Declaration of Restrictions\" signed by Anton Paulsen, his wife, and others, the then owners of the South Land Park Tract executed August 31, 1946, and which was recorded on September 7, 1946, certain restrictions were imposed on this tract, providing that all lots, with the exception of Lot 16 of Block 4 on which the shopping center and the proposed premises are located shall be restricted to residential use. As to Lot 16 of Block 4 it is provided that said lot is \"restricted to retail commercial purposes provided that no liquor or beverages shall be sold on said premises containing more than one-half of one per cent alcohol by volume.\" There is no evidence to show that issuance of the license in question would violate any valid zoning ordinance. It is stipulated, and it is found to be true, that the proposed premises are located in a shopping center, which, in turn, is located in a *445 general residential area. A search of the record discloses substantial support for the findings of fact.\n The conclusions of the department from the foregoing findings were as follows: Issuance of the license would not be contrary to public welfare and morals for the reason that although the proposed premises are located within the immediate vicinity of (1) a portion of the high school grounds, (2) a proposed children's public playground, (3) a church and (4) a proposed Y.M.C.A., an off-sale license would not expose the persons or juveniles involved to any undue moral hazard. Issuance of the license would violate a deed restriction, which appears to be valid and enforceable as to all parties in privity therewith, but public welfare and morals would not, in view of the findings on all other issues herein, be adversely affected by the issuance of an off-sale general license to this applicant and premises. The proposed premises are located in a residential area, but issuance of the license would not be contrary to public welfare and morals.\n The scope of review of a decision of the Department of Alcoholic Beverage Control, like that of the review of a decision of any administrative body given quasi-judicial powers by the Constitution, is well established. The Constitution declares that the department \"shall have the exclusive power ... to license the manufacture, importation and sale of alcoholic beverages in this State, .... The department shall have the power, in its discretion, to deny, suspend or revoke any specific alcoholic beverages license if it shall determine for good cause that the granting or continuance of such license would be contrary to public welfare or morals. ...\" [1a] In reviewing the decision of such an administrative body, the reviewing court is limited to the determination of whether or not the decision is supported by substantial evidence and the court may not substitute its view for that of the administrative body, nor reweigh conflicting evidence. (Dethlefsen v. Board of Equalization, 145 Cal. App. 2d 561, 563 [303 P.2d 7]; Molina v. Munro, 145 Cal. App. 2d 601 [302 P.2d 818].) [2] The reviewing court, in its consideration of the evidence in support of the decision, must resolve conflicts, and indulge legitimate and reasonable inferences, in favor of that decision. (Thompson v. City of Long Beach, 41 Cal. 2d 235, 241 [259 P.2d 649]; Oxman v. Department of Alcoholic Beverage Control, 153 Cal. App. 2d 740, 744 [315 P.2d 484]; Marcucci v. Board of Equalization, 138 Cal. App. 2d 605 [292 P.2d 264].) [1b] There *446 can be nothing in the nature of a trial de novo in the reviewing court.\n [3] Tested by the foregoing rules, there is substantial evidence in the record which supports the decision of the department and, therefore, its decision must be upheld and the judgment appealed from must be reversed.\n Witnesses for the protestants testified that if liquors were sold in Raley's market, minors would find a way of getting it, either by pilfering it from the store or inducing adults to purchase it, take it out of the store and give it to the minors; that this would happen generally when students were attending various athletic games and contests during evenings such as football and basketball games; that the pilfering and illegal obtaining through intervention of adults would be increased by the propinquity of the market to the school grounds; that handy access to the liquor supply would increase use of intoxicants by adult attendants at the games; that minors would obtain liquor more readily at that market than they would at other markets through misrepresentation of their ages and having obtained it would permit its use by themselves and other students. Representatives of the nearby church testified that they opposed granting the license on the same grounds urged by the school authorities, but admitted that so far as the church congregation was concerned they did not expect any bad effects upon their membership. Representatives of the Y.M.C.A., which proposed to build in the future a building in the general vicinity of the market, testified that their membership would be more apt to indulge in the use of alcoholic beverages than if the same were not so handy to their headquarters. Many of these witnesses claiming to be well versed with juvenile problems, particularly those encouraged by the use of alcoholic beverages, gave it as their opinion that transfer of the license would adversely affect public welfare and morals, thus testifying directly to the very issue to be passed on by the board.\n Assuming the admissibility of such opinion evidence, we think it apparent that the evidence given by protestants' witnesses did not, as a matter of law, prove that the granting of the transfer of the license by the board would be contrary to public welfare or morals.\n The ultimate question whether or not under all the circumstances the granting of the off-sale license would adversely affect public welfare and morals was on this record peculiarly an issue for departmental resolution. It is lawful to sell, *447 possess and use intoxicating liquor in this state. Surely the board, which passes on the issuance of thousands of licenses under all conceivable conditions, can better determine the effect upon public welfare and morals of the granting of a license than can those who are not constantly so engaged. Undoubtedly, the protestants were completely and conscientiously serious in their objections and their witnesses were honestly apprehensive, as they said they were, that public welfare and morals would be adversely affected if Raley's application were granted, but the question was for resolution by the board and it cannot be said from this record that the board in anywise abused its discretion in granting the license.\n [4a] With respect to the contentions of respondent that the license could not be validly issued during the existence of a valid covenant against the sale of intoxicating liquors, the research of counsel and of the court has disclosed little authority, and apparently the question is novel in California. The Constitution, which vests in the department the exclusive power to license the sale of intoxicating liquor, makes the power subordinate to laws enacted by the Legislature. The Legislature, by section 23790 of the Alcoholic Beverage Control Act, has provided that retail licenses shall not be issued for any premises located in territory where the exercise of the rights conferred would be contrary to a valid zoning ordinance of any county or city unless the premises had been used in the exercise of such rights at a time prior to the effective date of the zoning ordinance. We find no other legislative enactment restricting the licensing power of the board. [5] Restrictive covenants are private contracts as opposed to public zoning ordinances. In Barnegat City Beach Assn. v. Busby, 44 N.J. Law 627, the court said:\n \"... The question of jurisdiction is not affected by the existence of covenants and conditions against open bars for the sale of intoxicating drinks, contained in the deeds for lands in this locality. However binding this may be upon the parties to such instruments, they are in no wise obligatory upon the court in the exercise of its statutory discretion to grant licenses for the public convenience, nor can such provisions render licenses granted invalid.\"\n Apparently a contrary position has been taken by the courts in Pennsylvania. (See Appeal of Cheris, 127 Pa. Super. 355 [193 A. 162].)\n [4b] In this case the board received in evidence a certified copy of a deed imposing the restriction. From the record it *448 appears that the board considered the covenant to be valid and, further considering the covenant as one of the facts before it, specifically determined that its existence did not justify the board in a holding that its violation would be a matter affecting public welfare and morals. We think this conclusion of the board to have been warranted by the record before it. Apparently the board concluded that the covenant presented no insurmountable barrier to the granting of the license and left the parties to the covenant to resort to the courts if so advised. On this record this was a justifiable and proper disposition of the issue.\n For the reasons given, the judgment appealed from is reversed.\n Peek, J., and Schottky, J., concurred.\n", "ocr": false, "opinion_id": 2605967 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\93/93-02062.CV0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n No. 93-2062.\n\nGloria Jean HARPER, Individually and as Mother and Next Friend of Jordan Harper a Minor and\nJordan Harper, Plaintiffs-Appellees,\n\n v.\n\n HARRIS COUNTY, TEXAS, et al., Defendants,\n\n John P. Denholm, Defendant-Appellant.\n\n April 29, 1994.\n\nAppeal from the United States District Court for the Southern District of Texas.\n\nBefore ALDISERT*, REYNALDO G. GARZA and DUHÉ, Circuit Judges.\n\n PER CURIAM:\n\n Defendant Denholm appeals the denial of his motion for summary judgment that was based\n\nupon his assertion of qualified immunity. Finding no error, we AFFIRM.\n\n I.\n\n Gloria Jean Harper, individually, and as mother and next friend of her son Jordan Harper, sued\n\nJ.P. Denholm, individually,1 under 42 U.S.C. § 1983 for wrongful arrest, use of excessive force\n\nincident to Gloria Harper's arrest in violation of the Fourt h Amendment, invasion of privacy, and\n\npendent state law claims.\n\n Harper's complaint alleges that on October 29, 1990, Denholm illegally arrested Harper as she\n\nwas walking with her infant son, Jordan, to a bus stop. Harper contends that Denholm cut off her\n\nair by grabbing her by the throat, told her to drop her son, referred to her as a \"bitch,\" and threw her\n\nto the ground. After transporting her to the jail, Denholm struck Harper on her right knee. Harper\n\nallegedly suffered a badly bruised knee and a sore throat.\n\n The district court denied Denholm's motion for summary judgment. Defendant has appealed.\n\n *\n Circuit Judge of the Third Circuit, sitting by designation.\n 1\n The district court dismissed Denholm, in his official capacity, and Sheriff Johnny\nKlevenhagen. The remaining defendants are Harris County, Texas, and Denholm, individually.\n\f II.\n\n This Court has jurisdiction over an interlocutory appeal of a denial of summary judgment on\n\nthe ground of qualified immunity. Review of a district court's ruling on a motion for summary\n\njudgment is plenary. King v. Chide, 974 F.2d 653, 655 (5th Cir.1992). We apply the same standards\n\nas those that govern the district court's determination. Id.\n\n Summary judgment is proper if there is no genuine issue of material fact and the moving party\n\nis entitled to judgment as a matter of law. Id. at 655-56; Fed.R.Civ.P. 56(c). To determine whether\n\nthere are any genuine issues of material fact, we first consult the applicable substantive law to\n\nascertain the material factual issues. King, 974 F.2d at 656. Then we view the evidence bearing on\n\nthose issues, viewing the facts and inferences in the light most favorable to the nonmoving party. Id.\n\n III.\n\n Denholm claims that he is entitled to qualified immunity in that his use of force was\n\nobjectively reasonable under the circumstances and in light of the legal rules established at the time\n\nof the arrest. He contends, inter alia, that he is entitled to qualified immunity because Harper failed\n\nto plead and prove she had sustained a significant injury while being arrested.\n\n Qualified immunity protects a police officer from liability if a reaso nably competent law\n\nenforcement officer would not have known that his actions violated clearly established law. Anderson\n\nv. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The objective\n\nreasonableness of the officer's conduct is measured with reference to the law as it existed at the time\n\nof the conduct in question. King, 974 F.2d at 657. Therefore, the right the official is alleged to have\n\nviolated must have been clearly established at the time of the occurrence. Anderson v. Creighton,\n\n483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The contours of the right must\n\nbe sufficiently clear so that a reasonable official would understand that what he is doing violates that\n\nright. Johnston v. City of Houston, 14 F.3d 1056 (5th Cir.1994) (citing Creighton, 483 U.S. at 640,\n\n107 S.Ct. at 3039). If, upon viewing t he evidence in the light most favorable to the non-movant,\n\nreasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is\n\nentitled to qualified immunity. See id. (citing Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th\n\fCir.1990)).\n\n The examination of a claim of qualified immunity is a two-step process. The first inquiry is\n\nwhether t he plaintiff has alleged a violation of a clearly established constitutional right. Siegert v.\n\nGilley, 500 U.S. 226, ----, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). It is well settled that if\n\na law enforcement officer uses excessive force in the course of making an arrest, the Fourth\n\nAmendment guarantee against unreasonable seizure is implicated. King, 974 F.2d at 656. The next\n\nstep is to determine the standard by which to judge the reasonableness of the officer's behavior. Id.\n\nat 657.\n\n Denholm argues that controlling authority in October 1990 required a plaintiff alleging an\n\nexcessive force case under the Fourth Amendment to prove a significant injury, which resulted\n\ndirectly and only from the use of force that was clearly excessive to the need, and the excessiveness\n\nof that need was objectively unreasonable. Johnson v. Morel, 876 F.2d 477, 480 (5th Cir.1989) (en\n\nbanc). The Supreme Court overruled the significant injury prong in an Eighth Amendment excessive\n\nuse of force context. Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156,\n\n167 (1992). We now hold that the Johnson standard is no longer valid in the wake of Hudson v.\n\nMcMillian, --- U.S. ----, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). A plaintiff is no longer required\n\nto prove significant injury to assert a section 1983 Fourth Amendment excessive force claim. See\n\nKnight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1298,\n\n122 L.Ed.2d 688 (1993). However, appellant concludes that since we are to judge the officer's\n\nconduct under the laws established at the time of the occurrence, he is shielded by qualified immunity\n\nbecause the since discarded \"significant injury\" component still existed on the date of the arrest.\n\nDenholm's argument implies that his conduct cannot be declared \"unreasonable\" if no significant\n\ninjury resulted. We disagree with the appellant's conclusion.\n\n It is true that this Court has decisively rejected the retroactive application of new legal\n\nstandards to excessive force claims involving qualified immunity, and has held that the objective\n\nreasonableness of a government official's conduct must be measured with reference to the law as it\n\nexisted at the time of the conduct in question. See, e.g., Creighton, 483 U.S. at 637, 107 S.Ct. at\n\f3038. However, this is not to say that the plaintiff must allege and prove an element of her claim that\n\nis no longer required. The proper inquiry is whether \"[t]he contours of the right [were] sufficiently\n\nclear that a reasonable official would understand that what he is doing violates the right.\" Creighton,\n\n483 U.S. at 639, 107 S.Ct. at 3039. The significant injury requirement was not part of the contour\n\nof the right, but was merely a threshold injury requirement for plaintiffs to satisfy as an element of\n\ntheir claim. We no longer require such a demonstration for a successful action. \"The contour, or\n\nstandard, for a constitutional right may expand after the time of the alleged violation, and may be the\n\nbenchmark for proof at trial of that right and its claimed violation; but as stated, the benchmark for\n\nobjective reasonableness is that which existed at the time of the alleged violation—we look to clearly\n\nestablished law at that time.\" Johnston v. City of Houston, 14 F.3d at 1060 (5th Cir.1994) (citing\n\nSpann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993)). This task necessarily encompasses judging\n\nthe reasonableness of the officer's conduct in light of the specific contours of the right to be free from\n\nexcessive force during arrest that predominated at the time; not applying the substantive law that\n\nexisted then, to hold Harper to a higher burden of proof than presently controls.\n\n In the context of excessive force cases, when officials maliciously and sadistically use force\n\nto cause harm, contemporary standards of decency always are violated. See Hudson v. McMillian, ---\n\nU.S. ----, ----, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156, 167 (1992). \"This is true whether or not\n\nsignificant injury is evident.\" Id. Otherwise, the Fourt h Amendment would permit any physical\n\npunishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.\n\nCf. Id. Stated differently, Defendant Denholm's claim that he is shielded by qualified immunity unless\n\nhe caused significant injury amounts to nothing more than a bald assertion that he could use\n\nobjectively unreasonable force and inflict unlimited physical and ment al pain so long as he did not\n\ncause significant injury. Such a result would have been as unacceptable to the drafters o f the\n\nConstitution as it is today. Cf. id. Qualified immunity only shields officers who engage in objectively\n\nreasonable conduct, not officers who engage in objectively unreasonable conduct but do not cause\n\na significant injury.\n\n The evidence reveals that a genuine issue of material fact remains regarding the use of\n\fexcessive force and the objective reasonableness of using such force, so Denholm is not entitled to\n\nsummary judgment. Of course, Denholm still may assert qualified immunity at trial. We express no\n\nview as to the facts that may be established at trial or as to the legal significance of those facts.\n\n IV.\n\n Denholm next argues that the district court incorrectly denied his claim to qualified immunity\n\nwith regard to the unlawful arrest charge.\n\n Both sides have offered proper summary judgment evidence to corroborate their version of\n\nthe facts. Clearly, a genuine dispute as to the material facts exists, as exhibited by the contradictory\n\naccount of the events. Summary judgment is inappropriate unless plaintiff's version of the violations\n\ndo not implicate clearly established law. This is not the case. Harper has asserted gross infringements\n\nof fundamental Constitutional protections. If Harper's facts prove to be correct, Denholm was either\n\nplainly incompetent or he knowingly violated the law, and qualified immunity will not protect him.\n\n Denholm next states that the district court erred in denying him qualified immunity for the\n\nunlawful arrest allegation. Denholm contends t hat he had probable cause to believe that Harper\n\nviolated Texas law which prohibits evading arrest or detention. A person commits that offense if she\n\n\"intentionally flees from a person [s]he knows is a peace officer attempting to arrest h[er] or detain\n\nh[er] for the purpose of questioning or investigating possible criminal activity.\" TEX.PEN.CODE ANN.\n\n§ 38.04 (Vernon Supp.1993). A peace officer can only arrest an individual without a warrant if the\n\nofficer has pro bable cause to believe that a serious offense has occurred or where he witnesses a\n\nviolation of the law. Hafford v. State, 828 S.W.2d 275, 277 (Tex.App.—Fort Worth 1992, writ\n\nref'd), cert. denied, --- U.S. ----, 113 S.Ct. 1313, 122 L.Ed.2d 700 (1993). The test for probable\n\ncause in Denholm's warrantless arrest of Harper is whether, at the moment of the arrest, the facts and\n\ncircumstances within Denholm's knowledge and of which he had reasonably trustworthy information\n\nwere sufficient to warrant a prudent person in believing that Harper had committed or was\n\ncommitting an offense. See id.\n\n Denholm criticizes the district court for failing to address whether a genuine issue of material\n\nfact exists by delegating the question of probable cause to the jury. Denholm relies on the language\n\fin Hunter v. Bryant, --- U.S. ----, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam), in which the\n\nCourt admonished the Ninth Circuit for routinely placing the question of immunity in the hands of\n\nthe jury, even though immunity ordinarily should be decided by the court long before trial. Hunter,\n\n--- U.S. at ----, 112 S.Ct. at 537. The Court emphasized that \"[e]ven law enforcement officials who\n\n\"reasonably but mistakenly conclude that probable cause is present' are entitled to immunity.\" Id. ---\n\nU.S. at ----, 112 S.Ct. at 536. However, in Hunter there were undisputed material facts. While it\n\nis correct that the reasonableness of the arresting officer's conduct under the circumstances is a\n\nquestion of law for the court to decide, such is not the case where there exist material factual disputes\n\nas in the case before us. See id. --- U.S. at ----, 112 S.Ct. at 537.\n\n In the case at bar, Plaintiff Harper has specifically denied that she attempted to evade arrest\n\nor detention. The facts supporting the warrantless arrest are in serious dispute and turn on a\n\ncredibility determination that can only be made by the jury.\n\n Finally, the appellant raises issues dealing with Harper's claims of interference with the\n\nintegrity of the family unit, invasion of privacy, as well as several pendent state law causes of action.\n\nInsofar as the district court did not rule on these issues, they are sent back to be resolved during the\n\ncourse of the trial.\n\n V.\n\n For the foregoing reasons, the district court's denial of qualified immunity is\n\n AFFIRMED.\n\f", "ocr": false, "opinion_id": 6389 } ]

[ "198 F.2d 3" ]

[ { "author_str": "Duffy", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/198/198.F2d.3.10575.10576_1.html", "author_id": null, "opinion_text": "198 F.2d 3\n UNITED STATES,v.CARENGELLA.UNITED STATESv.DI VITO et al.\n Nos. 10575, 10576.\n United States Court of Appeals Seventh Circuit.\n July 15, 1952.Rehearing Denied Aug. 22, 1952.Writ of Certiorari Denied Nov. 10, 1952.See 73 S. Ct. 179.\n \n George M. Crane, Charles A. Bellows, Chicago, Ill., for appellants.\n Otto Kerner, Jr., U.S. Atty., James P. Piragine, Asst. U.S. Atty., Chicago, Ill., for appellee.\n Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.\n DUFFY, Circuit Judge.\n \n \n 1\n Count 1 of the indictment herein charged Philip Tenerelli, Michael Carengella, William DiVito and Silvio Blandi with unlawfully, willfully and knowingly receiving 25 cases of Sunnybrook whiskey which had been stolen from an interstate shipment, and with knowledge by said defendants that said whiskey had been stolen; and Count 2 charged them with possession of such whiskey, all in violation of 18 U.S.C.A. § 659. The case was tried to a jury. A severance was granted as to Tenerelli, who changed his plea to guilty and testified for the government. Motions for judgments of acquittal were denied and the jury rendered verdicts of guilty on both counts. Motions for new trials were denied and the three defendants who have appealed were sentenced to several concurrent sentences of 5 years.\n \n \n 2\n A motor truck carrying a cargo of Sunnybrook whiskey, enroute from Louisville, Kentucky, to Iowa, was 'hi-jacked' near Chicago Heights, Illinois, on February 23, 1951. Three men in an automobile forced the driver to stop the truck, blindfolded him, and stole the cargo. The driver was unable to give a description of the three men.\n \n \n 3\n Philip Teneralli at that time was the operator of a liquor store and bar in Chicago. He had known defendant Michael Carengella for some 6 or 7 months prior to February, 1951. On March 2, 1951, about 6:00 p.m., Carengella approached Tenerelli at the latter's place of business, offering to sell him 25 cases of Sunnybrook whiskey at $25 a case, and Tenerelli agreed to purchase at that price. Carengella told Tenerelli to have $500 the following Monday, and asked whether he could immediately bring in the cases of whiskey,1 and Tenerelli replied, 'Go ahead, just bring it in the back.' Tenerelli saw three men carrying in the cases of whiskey, one of whom was Carengella, but he did not know and at the trial could not identify the other two. Teneralli testified that Carengella told him on the date when the whiskey was delivered 'that they would be in Monday and pick up the money.' Tenerelli testified that on Monday two persons whom he did not know came to his saloon; that at the time the place was dimly lighted and there were other patrons present, and that he was busy at the bar; that one of the two asked if he had the money, but he did not know which one made the inquiry; that he gave one of them $500 but again he did not know who it was that received the cash. He was unable to describe the physical appearance of the men or their wearing apparel, except that they were neatly dressed. He did say at the trial that he thought defendants DiVito and Blandi were the persons who came into the saloon and that one of them received the $500. Teneralli further testified that on the following Wednesday, pursuant to a previous arrangement, he paid Carengella $125, the balance of the agreed purchase price.\n \n \n 4\n Tenerelli testified that on two subsequent occasions, Blandi visited him and inquired whether he had been questioned by the police; that after he replied in the negative, he was told by Blandi at one time, 'You don't know me,' and at the other, 'Well, if they do, just you don't know me, that is all.' He also testified that about two months before the trial Blandi inquired whether he was being questioned by the police, and that he again replied in the negative.\n \n \n 5\n DiVito testified at the trial he had been employed as a salesman for an aluminum awning company for more than a year prior to his arrest. There was no evidence of any previous police record. DiVito denied any knowledge of or participation in the sale of whiskey, or that he ever had possession of same. Prior to the trial DiVito and Blandi were interviewed on several occasions by police and F.B.I. agents but they consistently maintained they were innocent of the charges.\n \n \n 6\n Tenerelli stated on the stand that he expected a consideration for testifying, and that his attorney told him if he co-operated with the Assistant United States Attorney and testified for the government, he might receive probation. After the trial Tenerelli was placed on probation.\n \n \n 7\n The evidence discloses that Carengella had possession and control of the 25 cases of whiskey on Friday, March 2, when he delivered same to Tenerelli. DiVito and Blandi do not come into the picture until Monday, March 5, and then only as the result of the somewhat shaky identification made by Tenerelli at the trial. However, on this appeal we must consider Tenerelli's testimony as true.\n \n \n 8\n Hence, the only testimony in the entire record that DiVito received 25 cases of whiskey and had same in his possession on March 2, 1951, is that he and Blandi came into Tenerelli's saloon on March 5, and that one of the two said to Tenerelli, 'Have you got the money?' and that one of the two received $500 from Tenerelli. The testimony against Blandi is the same, except that he subsequently asked Tenerelli questions as to police investigations as hereinbefore stated.\n \n \n 9\n It is apparent there is no evidence on which to base a conviction of DiVito and Blandi, unless they can be said to be aiders and abettors in connection with the receipt and possession of the whiskey by Carengella. Title 18 U.S.C.A. § 2 provides that whoever aids or abets another in the commission of an offense against the United States is guilty as a principal. DiVito and Blandi were not charged in the indictment as aiders and abettors, but this is not necessary since aiders and abettors may be charged directly as principals. Pearson et al. v. United States, 6 Cir., 192 F.2d 681, 694; O'Brien v. United States, 7 Cir., 25 F.2d 90.\n \n \n 10\n One is guilty as an aider and abettor when he consciously shares in any criminal act. Nye and Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct. 766, 93 L. Ed. 919; United States v. Johnson, 319 U.S. 503, 518, 63 S. Ct. 1233, 87 L. Ed. 1546. The rule is expressed in the case of United States v. Williams, 341 U.S. 58, 64, 71 S. Ct. 595, 599, 95 L. Ed. 747, in this language: 'Aiding and abetting means to assist the perpetrator of the crime. * * * To be present at a crime is not evidence of guilt as an aider or abettor. Hicks v. United States, 150 U.S. 442, 447, 450, 14 S. Ct. 144, 145, 147, 37 L. Ed. 1137. Cf. United States v. DiRe, 332 U.S. 581, 587, 68 S. Ct. 222, 225, 92 L. Ed. 210'.\n \n \n 11\n We do not overlook the testimony of Tenerelli that at the time Carengella delivered the whiskey to him on March 2, he told him 'that they would be in Monday and pick up the money.' However, neither DiVito nor Blandi were present at that conversation, and it is elementary that such testimony could not be used against them. On objection by their counsel the district court so ruled. Hence, in considering the case against DiVito and Blandi that statement must be disregarded.\n \n \n 12\n There is not a scintilla of evidence in this record that DiVito and Blandi knew the whiskey was stolen. While mere possession of recently stolen property warrants the inference of guilty knowledge unless a satisfactory explanation of possession is made consistent with innocence, such an inference cannot apply here. There is no proof in the record that DiVito and Blandi ever had any actual or constructive possession of the whiskey so that the inference might be effective against them. Surely the aiding and abetting statute does not give rise to the inference of knowledge on the part of DiVito and Blandi that the whiskey was stolen. There is nothing in the record to show possession by Carengella on March 2, 1951, was also possession by DiVito and Blandi. The paying of $500 by Tenerelli to DiVito and Blandi three days after Carengella parted with the possession of the whiskey cannot be related back to show possession on March 2 by DiVito or Blandi and that they had the guilty knowledge which the statute makes a necessary element of the crime.\n \n \n 13\n Tenerelli's further testimony that Blandi made inquiry as to police inquiries was not binding upon DiVito or Carengella who were not present. As to Blandi, it does no more than arouse the suspicion that he had a guilty conscience about something, but it takes something more than a robust suspicion to convict a defendant in a criminal case. United States v. Wainer, 7 Cir., 170 F.2d 603, 606. Association with guilty men may create suspicion, but it is not evidence of sufficient weight to convict under the statute in question. United States v. O'Brien, 7 Cir., 174 F.2d 341, 345. We think the judgments against DiVito and Blandi must be reversed.\n \n \n 14\n Carengella, arguing for a reversal of his conviction, attacks Tenerelli's testimony as of no inherent weight because he was an accomplice who expected to be benefited by testifying for the government. However, this was a matter of credibility for the jury. It was within the province of the jury to convict upon the unsupported testimony of an accomplice if the jury believed such evidence, and the court had given the proper cautionary instruction. O'Brien v. United States, 7 Cir., 25 F.2d 90, 91; United States v. Riedel, 7 Cir., 126 F.2d 81; United States v. Platt, 7 Cir., 156 F.2d 326. In the case at bar the district court instructed that the testimony of an accomplice is to be received by the jury with care, caution and suspicion.\n \n \n 15\n Furthermore, there was testimony by police officers and F.B.I. agents that after Carengella's arrest, when they were passengers in an elevator on their way to the Chicago Office of the F.B.I., defendant Carengella stated he had sold 25 cases of whiskey to Tenerelli. As Carengella did not take the stand, the testimony was not denied. We must regard the government's evidence in the light most favorable to it, and we must accept same as true, together with all reasonable inferences which the jury may have drawn therefrom. United States v. Yeoman-Henderson, Inc., 7 Cir., 193 F.2d 867, 869; United States v. Kelley, 7 Cir., 186 F.2d 598, 600. We think the evidence is sufficient to support the verdict of guilty as to Carengella. Caminetti v. United States, 242 U.S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442.\n \n \n 16\n It is urged in behalf of defendant Carengella that the district court committed reversible error by his extensive questioning of government witness Tenerelli, and his suggestions to the government's attorney. The court examined Tenerelli in some detail, including reference to the statement alleged to have been previously given by him to the United States Attorney. Counsel for Carengella claimed that the court's questions amounted to an impeachment of the witness.\n \n \n 17\n The influence of the trial judge on the jury is necessarily and properly of great weight. Starr v. United States, 153 U.S. 614, 626, 14 S. Ct. 919, 38 L. Ed. 841. And jurors are ever watchful of words which fall from his lips. United States v. Levi, 7 Cir., 177 F.2d 833, 836. In conducting the trial the judge should be careful not to do or not to say anything which might have the effect of prejudicing the cause of either party before those whose duty it is to decide the facts. United States v. Levi, supra. It is entirely proper for the trial judge to ask questions of witnesses. In United States v. Glasser, 7 Cir., 116 F.2d 690, at page 704, this court said: 'It is of course the duty of the trial judge to conduct the trial in an orderly way with a view to eliciting the truth and to attaining justice between the parties, and in so doing he has the authority to interrogate witnesses, * * * .' But it is no part of the judge's duty to caution or advise the prosecuting attorney in order to supply some deficiency in the proof or testimony favorable to the government. Carengella claimed error because in the trial below, during the court's questioning of Tenerelli, the judge said, 'You haven't told us about that. You had better go back and pick up, pick that up, Mr. District Attorney, that is, about his previous conversation with Carengella.'\n \n \n 18\n If this were a close case as to the guilt of Carengella, we might well conclude that substantial rights of defendant Carengella were prejudiced. However, under the rule stated in Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90 L. Ed. 1557, we have concluded that the judgment rendered was not substantially swayed by the error, and under Rule 52, Federal Rules of Criminal Procedure, 18 U.S.C.A., we must consider it as harmless error.\n \n \n 19\n The judgments against the defendants DiVito and Blandi are reversed with instructions to the district court to enter judgments of acquittal on both counts of the indictment. The judgment against Carengella is affirmed.\n \n \n \n 1\n It was stipulated that the 25 cases were part of the interstate shipment of Sunnybrook whiskey which had been stolen\n \n \n ", "ocr": false, "opinion_id": 229856 } ]

[ "256 Kan. 484", "885 P.2d 1255" ]

[ { "author_str": "Davis", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4460, "opinion_text": "\n256 Kan. 484 (1994)\nSTATE OF KANSAS, Appellee,\nv.\nROBERT S. WALTON, Appellant.\nNo. 71,149\nSupreme Court of Kansas.\nOpinion filed December 9, 1994.\nStephen W. Kessler, of Topeka, argued the cause and was on the brief for appellant.\nDavid B. Debenham, assistant district attorney, argued the cause, and Joan M. Hamilton, district attorney, and Robert T. Stephan, attorney general, were with him on the brief for appellee.\nThe opinion of the court was delivered by\nDAVIS, J.:\nThe defendant, Robert Sherman Walton appeals, contending that the trial court erred by refusing to allow him to withdraw his nolo contendere (no contest) plea. He also claims that the trial court abused its discretion in sentencing him. Finding no reversible error, we affirm.\n*485 The basis of the charges, according to the State, is that the defendant hired two others, Joe Johnson and Dominic Love, to kill his wife, Betty Walton. The gunman, Dominic Love, mistakenly killed Chang Kim instead of the defendant's wife. At a scheduled plea hearing, the State related to the court that the defendant would be pleading guilty to first-degree murder, conspiracy to commit first-degree murder, aggravated burglary, contributing to a child's misconduct or deprivation, unlawful discharge of a firearm at an occupied dwelling, and aggravated intimidation of a witness. In return, the State said it had agreed to drop the criminal solicitation charge and not seek the hard 40 sentence. The State and the defendant agreed to maximum consecutive sentences on the remaining counts.\nOn behalf of the defendant, counsel confirmed the plea agreement, with the exception that the defendant would be pleading no contest to the charges rather than guilty. After entering his plea of no contest and before sentencing, the defendant by letter and motion moved to withdraw his plea. The motion was denied. The trial court imposed the maximum sentence for each offense, to run consecutively. Additional facts necessary to resolve the questions raised are set forth below.\nWITHDRAWAL OF PLEA\nThe defendant advances two reasons in support of his contention that the court erred by refusing to allow him to withdraw his plea. First, he argues that the court violated the provisions of K.S.A. 22-3210(a)(2) because the court did not advise him of the maximum penalty provided by law which may be imposed upon the acceptance of the plea and because the court did not adequately advise him of the consequences of a no contest plea. Second, the defendant claims good cause for withdrawal was established because the defendant's girlfriend, Lisa Corbin, had made a videotaped statement prior to trial indicating that she and the defendant's son, Ralph Walton, had conspired to kill the defendant's wife and that the defendant was innocent. According to the defendant, he pled no contest only after being informed that Corbin would invoke her right not to testify at trial. The defendant *486 also claimed that he had an audiotape interview involving his son, Ralph Walton, wherein his son admitted plotting with Corbin to kill Betty Walton and completely exonerate the defendant.\nUnder K.S.A. 22-3210(d), a plea of guilty or nolo contendere may be withdrawn at any time before sentencing for good cause shown. The standard we apply when reviewing the decision of the trial court is one of abuse of discretion. See State v. Harrison, 231 Kan. 489, Syl. ¶ 1, 646 P.2d 493 (1982). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable; that is, when no reasonable person would take the view adopted by the trial court. State v. Reed, 248 Kan. 506, 512, 809 P.2d 553 (1991).\nK.S.A. 22-3210 sets forth the conditions which must be met before a court accepts a plea of guilty or nolo contendere. The defendant raises no questions concerning any requirement under K.S.A. 22-3210 except the two referenced above, viz, that the court did not advise him of the maximum possible sentence and that he did not understand the consequences of his no contest plea. K.S.A. 22-3210(a)(2).\nThe following quotations from the record address both of the defendant's contentions:\n\"THE COURT: Have there been plea negotiations?\n\"MRS. HAMILTON: Yes, Your Honor, and I will explain them to the Court. First of all, the State would move to dismiss Count No. 5 on the complaint. That's the criminal solicitation. This has been discussed and it was going to be dismissed prior to the jury trial as duplicitous anyway, so we would move to dismiss that. In regard to the other six remaining counts, I understand that in exchange for the State not seeking the hard 40 for this defendant, that the defendant will be pleading guilty as charged to Counts Numbers, 1, 2, 3, 4, 6 and 7. The State will also be requesting the maximum sentences on each of those counts and asking that they run consecutive with each other. The defendant has agreed to those consecutive counts and maximum sentences.\n\"So it's clear and understanding to the defendant as to what he is agreeing to, that would be 15 years before eligibility on a life sentence. On Count 2, it would be 2.5 years before parole eligibility. On Count 3, aggravated burglary, the maximum would be five to 20 years, parole eligibility would be two and a half years. On Count 4, contributing to the delinquency of a minor, it would be one to five, six months before parole eligibility. On Count 6, unlawful possession of a firearm, it would be three to 10, parole eligibility of one and a half *487 years. On Count 7, the maximum is one to five, six months before parole eligibility. That would make it a total of twenty-two and a half years before parole eligibility. That is if the Court would take the recommendations of the State and also the agreement of the defendant.\n\"I have discussed these issues with the victim's family — well, the victim's family is in Korea, Your Honor, and so we have not been able to discuss it specifically with the victim's family, but with the family that is in Kansas, the brother-in-law is the only one who speaks English, and he is related to the other family members. They are in agreement with this negotiation.\n\"MR. WURTZ: Your Honor, with the exception of the State's statement that he would be pleading guilty, which he prefers — in fact, has to, plead no contest, the agreement has been correctly stated. We're prepared to tender a voluntary plea of nolo contendere or no contest. He is willing to plead guilty to Counts 6 and 7, the ones related to the August 23rd incident, aggravated intimidation of a witness and unlawful discharge. But the ones relating to the murder itself, he must plead nolo contendere.\n\"THE COURT: All right. Mr. Walton, would you come forward, please? You are Robert Sherman Walton?\n\"DEFENDANT WALTON: Yes.\n\"THE COURT: How old are you?\n\"DEFENDANT WALTON: Forty-nine.\n\"THE COURT: You are here with Mr. Ron Wurtz, the District Public Defender. Have you had enough time to discuss this case with him?\n\"DEFENDANT WALTON: Yes.\n\"THE COURT: Are you satisfied with his services?\n\"DEFENDANT WALTON: Yes, I am.\n\"THE COURT: You have heard the statements of counsel concerning plea negotiations. Does that agree with your understanding of the plea negotiations?\n\"DEFENDANT WALTON: Yes.\n\"THE COURT: Other than the plea negotiations, have there been any threats or promises made in order to induce you to enter this plea?\n\"DEFENDANT WALTON: No.\n\"THE COURT: Do you understand that in Count 1 you are charged with murder in the first degree; Count 2, conspiracy to commit murder in the first degree; Count 3, aggravated burglary; Count 4, contributing to a child's misconduct or deprivation; Count 5, — Count 5 was dismissed; Count 6 is unlawful discharge of a firearm in an occupied dwelling; Count 7 is aggravated intimidation of a witness. Do you understand the charges?\n\"DEFENDANT WALTON: Yes, sir, I do, yes.\n\"THE COURT: And will you waive formal reading of the charges, Mr. Wurtz?\n\"MR. WURTZ: Yes, sir.\n\"THE COURT: Do you understand the possible penalties in the charges?\n\"DEFENDANT WALTON: Yes.\n\n*488 \"THE COURT: The District Attorney has already recited the possible penalties. Does that agree with your understanding of the penalties?\n\"DEFENDANT WALTON: Uh-huh.\n\"THE COURT: Your answer is yes?\n\"DEFENDANT WALTON: Yes.\"\n....\n\"THE COURT: Is there any question in your mind about what you are being accused of doing in this case, Mr. Walton?\n\"DEFENDANT WALTON: No, sir.\n\"THE COURT: Are you presently under the influence of any alcohol or any other drugs?\n\"DEFENDANT WALTON: No.\n\"THE COURT: Any reason that you know of why you should not enter a plea in this case?\n\"DEFENDANT WALTON: No, sir.\n\"THE COURT: Very well, the Court finds that the defendant is competent to enter this plea, that his plea is informed and voluntary, and that there is a factual basis for this plea. I will now ask you, sir, how do you plead to the charge of murder in the first degree as charged in Count 1?\n\"DEFENDANT WALTON: No contest.\n\"THE COURT: Do you understand that by entering that plea, while technically you are not admitting guilt, the Court would look upon it in the same light of a plea of guilty?\n\"DEFENDANT WALTON: No.\n\"MR. WURTZ: (To defendant Walton) Remember that I said that if you plead no contest the result would be the same as if you plead guilty?\n\"DEFENDANT WALTON: Oh, yeah.\n\"MR. WURTZ: You don't have to admit some of the facts, you —\n\"DEFENDANT WALTON: Yeah, I understand.\n\"THE COURT: Do you understand that?\n\"DEFENDANT WALTON: Yes, sir.\"\nWe have held that failure to strictly comply with the explicit requirements of K.S.A. 22-3210 is harmless error if, upon review of the entire record, it can be determined that the pleas were knowingly and voluntarily made. Noble v. State, 240 Kan. 162, 164, 727 P.2d 473 (1986). Recently, in State v. Morris, 254 Kan. 993, 1002, 869 P.2d 739 (1994), we found compliance with K.S.A. 22-3210(a)(2) where the State voiced on the record the maximum sentence that could be imposed and the court confirmed on the record that the defendant understood.\nThe defendant attempts to distinguish Morris on the basis that the defendant's plea was guilty instead of no contest. The defendant *489 argues that he did not realize his pleas of no contest would carry the same penalties as guilty pleas. However, the record reflects otherwise. The defendant originally stated that he did not understand but after conferring with his counsel stated that he did understand that the penalties would be the same.\nFinally, the court conducted a full hearing on the defendant's allegations that other evidence discovered after entry of his plea exonerated him, thus providing good cause for granting the motion to withdraw. He bases part of his argument on an audiotape interview of Ralph Walton and a videotaped statement of Lisa Corbin. The tapes are not a part of the record on appeal.\nThe trial court considered all evidence, including the videotaped statement of Lisa Corbin, the testimony and audiotape interview of Ralph Walton, and the testimony of the defendant. The court concluded that the defendant's plea was informed and voluntary. The court further stated that the Corbin videotape was no basis for withdrawing the plea and that the audiotape of Ralph Walton was not exculpatory. We have reviewed the record and conclude that the trial court's findings are supported by substantial competent evidence.\nAs a final consideration, the defendant asks us to adopt a test used by the 10th Circuit Court of Appeals in U.S. v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991), to determine whether a defendant should be allowed to withdraw his or her plea. Elias sets forth seven factors which the court must consider in determining whether to grant a defendant's motion to withdraw his or her plea. We have considered Elias and note that our law in Kansas incorporates some of the factors listed in Elias. We, however, reject the Elias test in favor of the well-established Kansas law for resolution of the issue.\nSENTENCE\nThe defendant contends that the court did not properly consider his individual needs under K.S.A. 21-4601 and did not adequately consider the sentencing factors under K.S.A. 1993 Supp. 21-4606 when imposing sentence. The standard which we apply in addressing these questions is whether the court abused its discretion in the sentencing phase of trial.\n*490 \"K.S.A. [1993 Supp.] 21-4606[b] sets forth seven factors which, while not controlling, are to be considered by the court in fixing the minimum term of imprisonment which is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant's crime.\" State v. McDonald, 250 Kan. 73, 82, 824 P.2d 941 (1992). \"The district court must consider the sentencing factors set forth in K.S.A. [1993 Supp.] 21-4606[b] when exercising its discretion in sentencing a defendant in excess of the minimum term for the offense.\" State v. Crawford, 250 Kan. 174, 176, 824 P.2d 951 (1992). However, failure to do so does not always constitute abuse of discretion; each case should be decided on its own facts. State v. Richard, 252 Kan. 872, 881, 850 P.2d 844 (1993).\nK.S.A. 21-4601 sets forth the sentencing objectives of the corrections system. The sentencing court is not required to specifically consider those objectives as it must the sentencing factors in 21-4606. State v. Webb, 242 Kan. 519, 530, 748 P.2d 875 (1988).\nThe defendant argues that the district court failed to consider both K.S.A. 21-4601 and the factors in K.S.A. 1993 Supp. 21-4606(b). However, the court did state that it was taking into account both K.S.A. 21-4601 and K.S.A. 1993 Supp. 21-4606. Our review indicates that the court did in fact consider the sentencing factors. The court stated that it was taking into consideration that the defendant had an extensive criminal history, was the primary instigator, caused irreparable harm, and had no justification for his actions. Furthermore, the court found that the victim had no part in instigating the crime.\nFinally, the court stated that it had considered the presentence investigation report, which substantially addressed the sentencing factors. A sentencing court may be found to have complied with K.S.A. 1993 Supp. 21-4606 when it incorporates into the record a presentence investigation report which addresses the sentencing factors. State v. Webb, 242 Kan. 519, Syl. ¶ 2. The defendant's claim that the court abused its discretion fails because the record demonstrates that the court expressly and implicitly considered the sentencing factors listed in 21-4606. Moreover, the court considered *491 a presentence investigation report incorporating the sentencing factors.\nAffirmed.\n", "ocr": false, "opinion_id": 2614002 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1020-1423", "author_id": 1911, "opinion_text": "UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\n\nABDAL RAZAK ALI,\nPetitioner,\nv.\n\nCivil Case No. 10-1020 (RJL)\nBARACK OBAMA, et al.,\n\n§€€@S€éé€\n\nResp0ndents.\n\nCASE MANAGEMENT ORDER\n(August 25, 2010)\n\nUpon review of the relevant filings, the relevant law, and the entire record herein,\nit is hereby ORDERED that the following procedures will govern the habeas corpus\nproceedings for the petitioner in the above-captioned case and shall supersede any case\nmanagement orders previously entered in this case:'\n\nI. PRE-HEARING PROCEDURES:\n\nA. Filings: All classified filings made through the Court Security Office,\nincluding the Govemment’s retum, petitioner’s traverse, and any motions,\nshall be filed in duplicate and by 1100 p.m. on the due date.\n\nB. Factual Returns: The Government shall produce retums according to the\nschedule set forth at the August 19, 2010 Status Conference.z The\nGovemment’s return shall include, at a minimum, the factual basis for\ndetention and a brief statement setting forth the Govemment’s legal basis\nfor detaining the petitioner. If the Govemment’s basis for detention is the\npetitioner’s status as an \"enemy combatant,\" the Govemment must provide\nthe definition of enemy combatant upon which it relies. If the\nGovemment’s return fails to include a brief statement setting forth its legal\nbasis for detention, the Government will be required to file a supplement to\n\nl This Case Management Order (\"Cl\\/IO\") addresses procedural issues common to all the\nGuantanamo Bay detainee habeas petitions before the Court and is substantially identical to the\nCMO entered August 27, 2008 in Boumediene v. Bush, No. 04-cv-1 166. Where this CMO\ndeviates from CMO entered in Boumediene, it does so based either on the particular\ncircumstances of this case or the experience gained from the Boumea'iene case.\n\nits return by a date set by the Court. In addition, the return may be\namended or supplemented only by leave of the Court for good cause\nshown.\n\nC. Unclassified Returns: The Government shall tile an unclassified version\nof the return no later than two weeks after the filing date for the return set at\nthe August 19, 2010 Status Conference.\n\nD. Discovery: Discovery may only be obtained by leave of the Court for good\ncause shown. The petitioner requesting discovery must provide specific\nreasons for the request in writing. Any request for discovery must: (l) be\nnarrowly tailored; (2) specify why the request is likely to produce evidence\nboth relevant and material to the petitioner’s case; (3) specify the nature of\nthe request (e.g., proposed interrogatories, requests for admission, or\nrequested documents); and (4) explain why the burden on the Govemment\nto produce such evidence is neither unfairly disruptive nor unduly\nburdensome to the Govemment. The Government has three (3) calendar\ndays to respond in writing to any discovery request. The Court may hold a\nhearing at its discretion to hear arguments on the discovery request(s).\n\nE. Exculpatory Evidence: The Govemment shall provide on an ongoing\nbasis any evidence contained in the material reviewed in developing the\nreturn for the petitioner, and in preparation for the hearing for the\npetitioner, that tends materially to undermine the Govemment’s theory as to\nthe lawfulness of the petitioner’s detention.\n\nF. Traverse: The petitioner shall file a traverse in response to the\nGovemment’s return. The traverse, including any amendments or\nsupplements, shall be filed according to the schedule set forth at the August\n19, 2010 Status Conference. The traverse shall include, at a minimum, the\nrelevant facts in support of the petition and a succinct rebuttal of the\nGovemment’s legal justification for detention.\n\nG. Pre-Hearing Conference: The Court will hold a pre-hearing conference\nprior to the habeas hearing on September 29, 2010, at 2:00 p.m. At this\nconf`erence, counsel should be prepared to formulate and simplify the issues\nof law and fact to be resolved at the habeas hearing, identifying areas of\nagreement and dispute; explore evidentiary problems that may be expected\nto arise at the habeas hearing; and identify witnesses and documents to be\npresented at the habeas hearing.\n\n2 Extensions of time from the deadlines set by the Court will be granted rarely and only for\n\ngood cause shown.\n\nII.\n\nHEARING PROCEDURES:\n\nA.\n\nBurden and Standard of Proof: The Govemment must establish, by a\npreponderance of the evidence, the lawfulness of the petitioner’s detention.\nThe Government bears the ultimate burden of persuasion that the\npetitioner’s detention is lawful.\n\nPresumption in Favor of Govemment’s Evidence: The Court will\ndetermine, as to any evidence introduced by the Government, whether a\npresumption of accuracy and/or authenticity should be accorded the\nevidence. The petitioner will be given an opportunity to rebut any such\npresumption accorded the Govemment’s evidence.\n\nPresentation of Evidence at the Habeas Hearing: The Govemment will\nproceed first. At the completion of the Govemment’s presentation, the\npetitioner may present evidence. At the close of petitioner’s case, the\nGovemment may present either additional or rebuttal evidence. At the\nclose of all the evidence, each side may present closing argument as to the\nlawfulness of the petitioner’s detention. If a party is permitted to present\nlive testimony during the habeas hearing, the opposing party will be\npermitted to cross-examine those witnesses.\n\nHearsay: Hearsay evidence that is relevant and material to the lawfulness\nof petitioner’s detention may be admissible. The opposing party will have\nan opportunity to challenge the credibility and weight accorded any hearsay\nevidence.\n\nPetitioner’s Attendance at Proceedings: Although petitioners are\nprohibited by law from listening to the classified portions of the hearing,\nthe Court will endeavor to provide them with telephonic access to any\nunclassified portion of the hearing. At a minimum, the petitioner’s counsel\nwill have the opportunity to contact the petitioner by secure telephone on at\nleast one occasion prior to presenting its case.\n\nSO ORDERED.\n\nH¢i.»a.»/\n\n)\n/\nRIcHARD@lEoN\nUnited States District Judge\n\n", "ocr": true, "opinion_id": 2665421 } ]

[ "332 F.3d 825" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n\nON PETITION FOR REHEARING EN BANC\n\nBefore GARWOOD, SMITH and BARKSDALE, Circuit Judges.\nPER CURIAM:\nTreating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majori*826ty of the judges who are in regular active service not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED.\n", "ocr": false, "opinion_id": 9414246 }, { "author_str": "King", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nKING, Chief Judge, and PATRICK E. HIGGINBOTHAM, DeMOSS, BENAVIDES, CARL E. STEWART and DENNIS, Circuit Judges,\ndissenting:\nWith respect, we dissent from the decision to deny en banc consideration of this case.\n1. The panel opinion creates a circuit conflict with the decision of the Tenth Circuit in U.S. v. Wiseman, 297 F.3d 975 (10th Cir.2002). In Wiseman, as here, the issue was whether the decision in Castillo v. U.S., 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), that Congress intended to create a separate offense of possessing a machinegun shall be available to earlier convicted defendants on habeas review. The Tenth Circuit in Wiseman said yes, and the panel said no, holding that the statutory interpretation is Teag-ue barred.\n2. The Supreme Court in Castillo made plain that the decision rested on its finding of congressional intent, explaining:\n“for the reasons stated, we believe that Congress intended the firearm type-related words it used in § 924(c)(1) to refer to an element of a separate, aggravated crime.” 530 U.S. at 131,120 S.Ct. 2090.\nIt is well established that when the Supreme Court construes a statute, “it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Bousley v. U.S., 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). A statement of what the law is and always was cannot be a new constitutional rule of criminal procedure.\n3. Congress provided that each of the “firearm type-related words” used in § 924(c)(1) describes an element of a separate, aggravated crime. It follows that each of these separate crimes carries its own separate punishment as set forth in § 924(c)(1). Contrary to the panel opinion, we do not think that the decision of the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), informs our issue. Proof of the type of firearm used does not “increase the maximum penalty for that crime,” but simply satisfies an element of that separate crime which has its own defined penalty.\n4. We are persuaded that Castillo’s holding that Congress intended to create separate crimes is substantive; that implementing its substantive holding worked procedural changes cannot be determinative. To conclude otherwise expands Teague beyond the authority of this court and poses a frontal challenge to the Article III proscriptions of judicial legislation.\nFor these reasons, we think the panel opinion is in error and the majority of this Court erred in denying en banc reconsideration.\n", "ocr": false, "opinion_id": 9414247 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\01/01-21166.cv1.wpd.pdf", "author_id": null, "opinion_text": "332 F.3d 825\n UNITED STATES of America, Plaintiff-Appellee,v.Enrique GONZALES, Sr., Defendant-Appellant.\n No. 01-21166.\n United States Court of Appeals, Fifth Circuit.\n May 29, 2003.\n \n Renata Ann Gowie (argued) and James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.\n John Richard Donahue (argued), Law Office of John Donahue, Waco, TX, for Defendant-Appellant.\n Appeal from the United States District Court for the Southern District of Texas; David Hittner, Judge.\n \n ON PETITION FOR REHEARING EN BANC\n \n (Opinion April 1, 2003, 5th Cir., 327 F.3d 416)\n Before GARWOOD, SMITH and BARKSDALE, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service not having voted in favor (FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.\n \n \n 2\n KING, Chief Judge, and PATRICK E. HIGGINBOTHAM, DeMOSS, BENAVIDES, CARL E. STEWART and DENNIS, Circuit Judges, dissenting:\n \n \n 3\n With respect, we dissent from the decision to deny en banc consideration of this case.\n \n \n 4\n 1. The panel opinion creates a circuit conflict with the decision of the Tenth Circuit in U.S. v. Wiseman, 297 F.3d 975 (10th Cir.2002). In Wiseman, as here, the issue was whether the decision in Castillo v. U.S., 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), that Congress intended to create a separate offense of possessing a machinegun shall be available to earlier convicted defendants on habeas review. The Tenth Circuit in Wiseman said yes, and the panel said no, holding that the statutory interpretation is Teague barred.\n \n \n 5\n 2. The Supreme Court in Castillo made plain that the decision rested on its finding of congressional intent, explaining:\n \n \n 6\n \"for the reasons stated, we believe that Congress intended the firearm type-related words it used in § 924(c)(1) to refer to an element of a separate, aggravated crime.\" 530 U.S. at 131, 120 S.Ct. 2090.\n \n \n 7\n It is well established that when the Supreme Court construes a statute, \"it is explaining its understanding of what the statute has meant continuously since the date when it became law.\" Bousley v. U.S., 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). A statement of what the law is and always was cannot be a new constitutional rule of criminal procedure.\n \n \n 8\n 3. Congress provided that each of the \"firearm type-related words\" used in § 924(c)(1) describes an element of a separate, aggravated crime. It follows that each of these separate crimes carries its own separate punishment as set forth in § 924(c)(1). Contrary to the panel opinion, we do not think that the decision of the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), informs our issue. Proof of the type of firearm used does not \"increase the maximum penalty for that crime,\" but simply satisfies an element of that separate crime which has its own defined penalty.\n \n \n 9\n 4. We are persuaded that Castillo's holding that Congress intended to create separate crimes is substantive; that implementing its substantive holding worked procedural changes cannot be determinative. To conclude otherwise expands Teague beyond the authority of this court and poses a frontal challenge to the Article III proscriptions of judicial legislation.\n \n \n 10\n For these reasons, we think the panel opinion is in error and the majority of this Court erred in denying en banc reconsideration.\n \n ", "ocr": false, "opinion_id": 31261 } ]

[ "488 P.2d 1088", "79 Wash. 2d 688" ]

[ { "author_str": "Finley", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5969, "opinion_text": "\n79 Wash. 2d 688 (1971)\n488 P.2d 1088\nWANDERMERE CORPORATION, Petitioner,\nv.\nTHE STATE OF WASHINGTON, Respondent.\nNo. 41862.\nThe Supreme Court of Washington, En Banc.\nSeptember 23, 1971.\nWinston, Repsold & McNichols, by Stanley D. Moore, for petitioner.\nSlade Gorton, Attorney General, and Charles F. Secrest, Assistant, for respondent.\nFINLEY, J.\nThis is an action by petitioner Wandermere against the State Department of Highways to restrain and enjoin the department from making certain improvements to an existing drainage facility until such time as petitioner's damages have been ascertained \"in the manner provided by law.\"\nIn January, 1970, the Department of Highways published notice of intent to hold a design hearing regarding proposed construction of a storm drainage facility. The project consisted of improvements to existing drainage facilities adjacent, inter alia, to U.S. 395, a primary state highway in Spokane County. The facility is designed to capture run-off waters from U.S. 395 and water from catch basins in the area, in addition to receiving waters from a connecting storm sewer system. These waters are then transported through the improved facility and are discharged into the Little Spokane River.\nThe department's notice described the proposed drainage facility as consisting of a completely underground sewer line to be constructed entirely within the boundaries of existing state-owned highway right-of-way limits. Petitioner Wandermere's property abuts the highway, U.S. 395, for a distance of approximately 1 mile. The described project design was approved and a contract was awarded in *690 early August, 1970. Construction of the project — which is of some magnitude — commenced several miles south and east of petitioner's property. Work progressed without incident and according to plans for some 2 1/2 months. In late October, 1970 — when project construction had reached a point some 1,100 to 1,200 feet south of the Wandermere property — petitioner observed that, although a ditch had been excavated, no pipe was, in fact, being laid.\nPetitioner immediately confronted representatives of the Department of Highways and was thereupon informed that, due to a change in plans, the facility would not consist of an underground sewer line in the immediate proximity of petitioner Wandermere's property. Rather, the facility, as it abutted petitioner's land, was to consist of an open drainage ditch, varying in width from 20 to 48 feet and in depth from 5 to 8 feet.\nAt this point, \"the race was on,\" in a manner of speaking, with petitioner attempting to move the cogs of restraining-injunctive legal machinery faster than respondent could move its bulldozers and other equipment. Petitioner sought immediate judicial relief by requesting an injunction to restrain respondent Department of Highways' work on the project until such time as petitioner Wandermere's damages had been determined \"in the manner provided by law.\" Up to the date set for the trial court's hearing on petitioner's complaint, no construction on the contemplated, revised highway project had occurred in the immediate proximity of petitioner's property, with the exception of some preliminary clearing.\nThe trial court was convinced that the completed drainage ditch would result in some damage to petitioner's right of access to the highway. However, the trial court concluded that a balancing of the equities and the availability of legal remedies to petitioner, potentially in the form of an action for inverse condemnation, justified denial of the injunction. The court's denial was conditioned upon:\n1. The State of Washington submit[ting] to the jurisdiction of [the Spokane County Superior] court and in *691 the alternative, appear[ing] and defend[ing] in the present action for damages or fil[ing] a condemnation action for the Wandermere property within 30 days, and\n2. That the provisions of RCW Section 8.25.070 regarding attorneys' and expert witness fees apply to said damage action.\nPetitioner first attempted to appeal the trial court's ruling by filing a petition for writ of review in the Court of Appeals. After initially determining that it lacked jurisdiction in the matter, the Court of Appeals, on reconsideration, certified the cause to this court. We approved this sound procedure followed by the appellate court and issued a writ of certiorari to the trial court on February 11, 1971. We additionally ordered that further proceedings in the trial court be stayed pending our review of the matter. In the interim period, respondent Department of Highways continued construction of the drainage facility adjacent to petitioner Wandermere's property to the extent that the facility, at that point, is now completed and, apparently, fully operational.\nPetitioner's initial contention upon the review here is that the actions of respondent Department of Highways amount to a constitutional taking of petitioner's access rights within the meaning of Const. art. 1, § 16 (amendment 9). Thus, in this regard, it is petitioner's contention that the Department of Highways is constitutionally required (1) to seek an order adjudicating public use and necessity, and (2) to pay ascertained damages before it can legally undertake construction of the questioned drainage facility.\nConst. art. 1, § 16 (amendment 9) provides, in relevant part:\n\nNo private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, ... Whenever an attempt is made to take private property for a use alleged to be *692 public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: ...\n(Italics ours.)\nThe conceptual distinction between \"taking\" and \"damaging\" is far from clear-cut. Earlier decisions of this court generally distinguish the two concepts in the following manner:\n[O]ther constitutions, including our own, ... include both terms, \"taken\" and \"damaged.\" Where both terms are included, the word \"damaged\" should be held to cover injuries to property where there is no direct taking of the land itself; that is, where the owner is not deprived of title to any of the land, but where the land has been so injured or damaged as to cause a direct loss to the owner.\nMilwaukee Terminal Ry. v. Seattle, 86 Wash. 102, 107, 149 P. 644 (1915). See also, Fenton v. Seattle, 132 Wash. 194, 231 P. 795 (1925); Compton v. Seattle, 38 Wash. 514, 80 P. 757 (1905); Swope v. Seattle, 36 Wash. 113, 78 P. 607 (1904).\nThe above distinction has, however, been subjected to increasing challenge and judicial analysis on the basis that government is responsible for interference with the right, use, and enjoyment of private property whether such interference is to be characterized as a \"taking\" or as a \"damaging.\" In Ackerman v. Port of Seattle, 55 Wash. 2d 400, 409, 348 P.2d 664, 77 A.L.R. 2d 1344 (1960), this court quoted with approval Spann v. Dallas, 111 Tex. 350, 355, 235 S.W. 513, 19 A.L.R. 1387 (1921):\n\nProperty in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.\n(Italics ours.) See also, Martin v. Port of Seattle, 64 Wn.2d *693 309, 391 P.2d 540 (1964); Cummins v. King County, 72 Wash. 2d 624, 434 P.2d 588 (1967).\nMore recent decisions of this court clearly indicate that the earlier conceptual distinction between \"taking\" and \"damaging\" based upon the traditional definition of \"direct\" as opposed to \"no direct\" physical invasion is no longer viable. Hence, such an approach is unacceptable in terms of both traditional and socially desirable judicial responsibility and authority in that area of the law commonly designated as \"constitutional interpretation.\" This view has been recognized by the United States Supreme Court. In United States v. Cress, 243 U.S. 316, 61 L. Ed. 746, 37 S. Ct. 380 (1917), the court stated: \"[I]t is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.\" See also, United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946).\n[1] It is thus apparent that the distinction between the two concepts — \"taking\" and \"damaging\" — must be determined by the \"quality\" or \"character\" of the governmental interference. Where such interference is mere happenstance, fortuitous or of inconsequential dimension, that interference may properly be classified as a \"damaging.\" Where, however, the character of the governmental interference with private property rights is planned, deliberate and substantial, such interference, upon proper factual showing, should be deemed a \"taking\" — thereby requiring prior adjudication of public use and necessity under Const. art. 1, § 16 (amendment 9).\nThe characterization of these concepts developed and applied in Ackerman, Martin, and Cummins arose in the context of actions for \"inverse condemnation.\" Thus, in these cases, the question of public use and necessity was not at the outset presented for judicial determination. Rather, that question was determined after the fact of governmental fiat and action — i.e., positive governmental interference with private property rights absent any prior judicial determination — and the only remaining issue in the above-mentioned *694 cases involved an after-the-fact allowance and determination of appropriate compensation to the private property owner.\nIn the instant case, respondent department's alleged interference with petitioner Wandermere's property rights had not transpired — except for certain inconsequential preliminary work — prior to petitioner's attempt to secure an injunction. Thus, we are faced with the unique question, whether drainage facility improvements, to be constructed entirely upon state-owned primary state highway right-of-way amount to a governmental interference with access rights of adjacent private property to the extent that such interference amounts to a constitutional \"taking\" requiring prior adjudication of public use and necessity.\nAfter considerable deliberation, we are unable to conclude upon the facts of the instant case that the actions of respondent Department of Highways amount to a \"taking\" of petitioner Wandermere's property rights within the meaning of Const. art. 1, § 16 (amendment 9). In the instant case, it must be noted that the drainage facility will not eliminate any present physical access of petitioner Wandermere to the state highway, U.S. 395, nor will the project deprive the petitioner of any of its legal rights to construct access to said highway or make the construction of such access impossible. At most, the facility will render construction of highway access by petitioner more costly, and, collaterally, will increase the state's liability and the expenditure of public funds for damages.\nThus, we conclude that the \"character\" of respondent Department of Highways' interference with petitioner's property rights does not amount to a \"taking,\" and respondent was not, in an absolute constitutional context, required to seek an order adjudicating public use and necessity prior to construction of the drainage facility improvement.\n[2, 3] Our conclusion above is not intended to imply that the Department of Highways was precluded from seeking such a prior adjudication of public use and necessity. *695 Nor do we mean to imply that such action by the respondent would not have been a more prudent course of action. To the contrary, it may be noted that the Department of Highways possesses clear statutory authority to seek orders adjudicating public use and necessity in connection with projects of the instant kind. RCW 47.12.010 provides, in relevant part:\n\nWhenever it is necessary to secure any lands or interests in land for a right of way for any state highway, or for the drainage thereof or construction of a protection therefor ... the highway commission is authorized to acquire such lands or interests in land in behalf of the state by gift, purchase or condemnation. In case of condemnation to secure such lands or interests in land, the action shall be brought in the name of the state of Washington in the manner provided for the acquiring of property for the public uses of the state, ...\n(Italics ours.)\nThe determination of whether a given governmental interference with private property rights constitutes a \"taking\" or a \"damaging\" is a complex determination depending upon the unique facts of each given case. This determination is a judicial question. Thus, where private property owners advance good faith contentions that the state's actions will amount to a \"taking,\" it is most highly desirable that the Department of Highways avail itself of the authority and the procedure delineated in RCW 47.12.010. Prior adjudication of the question would avoid the possibility that the state may incorrectly assess the \"character\" of its interference as amounting to a \"damaging\" rather than a \"taking.\" Such incorrect determinations regarding the nature of the interference — made or assumed by the highway department \"sua sponte\" — may both result in depriving the property owner of his full constitutional protections and in subjecting the state to a subsequent and considerably more costly finding that its actions — rather than mere \"damaging\" — constitute a \"taking for public use.\"\nIndeed, the instant case demonstrates the wisdom of prior adjudication of the question of public use and necessity. *696 Petitioner Wandermere, in addition to alleging injury to its highway access rights, further contends that the revised project — consisting of an open drainage ditch — will seriously harm valuable interests and rights in an existing underground water table beneath its property. It is not inconceivable that proper showing could have been made at trial that the \"character\" of the state's interference with such rights in the instant case amounted to a \"taking\" of those rights.\n[4] Having determined that petitioner Wandermere is not entitled to an adjudication of public use and necessity regarding respondent department's interference with petitioner's highway access rights, we now consider whether petitioner was entitled to an injunction pending determination (1) of its alleged damages to highway access, or (2) of the \"character\" of respondent department's interference with its interests and rights in the underground water table.\nIn this regard, petitioner argues that Brown v. Seattle, 5 Wash. 35, 31 P. 313, 32 P. 214 (1892), is determinative. Brown involved damages to private property abutting a city street as the result of a change in street grade. Therein, this court held that, under Const. art. 1, § 16, the property owner\n\nhad a right to have [the] damage ascertained by a jury and paid to her before the work was done, if the damage thus sustained would leave her property less valuable to sell or rent than it was before; . ..\n(Italics ours.) Brown v. Seattle, 5 Wash. at 43. Respondent Department of Highways argues that Brown is distinguishable on the ground that the governmental acts involved therein had not transpired prior to petitioner Brown's securance of an injunction.\nWe find no merit in the distinction suggested by the respondent. It is true that some work had been performed on the project in the immediate vicinity of petitioner Wandermere's land as of the date set for the trial court's hearing on petitioner's complaint. However, it is clear from the *697 record that petitioner Wandermere first contacted the department regarding its (Wandermere's) objection to the plan change prior to any construction adjacent to petitioner's land.\nFurthermore, it is obvious that the work in the immediate vicinity of petitioner's land — which consisted of some mere clearing — was insufficient to defeat petitioner Wandermere's right to an injunction (assuming petitioner was otherwise entitled to such relief), upon the ground that once the state wrongfully \"takes\" private land it will not be ousted, and the property owner will be left to his legal remedies. See State ex rel. Peel v. Clausen, 94 Wash. 166, 162 P. 1 (1917). Indeed, were we to hold otherwise — i.e., that respondent's minor preliminary work defeated petitioner's right to an injunction — we would, as petitioner suggests, be sanctioning a \"fleet of foot\" doctrine; i.e., \"notwithstanding the constitutional mandate that damages be determined and paid prior to the damaging, if the state can build faster than the property owner can litigate, then the question becomes moot.\"\nThe constitutional provision (Const. art. 1, § 16 (amendment 9)) is clear, unambiguous and apparent as to its intended meaning:\n\nNo private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, ...\n(Italics ours.) It cannot be seriously disputed that petitioner Wandermere made a showing of damage. Respondent Department of Highways concedes — and it is obvious on the face of the record — that the completed ditch will make any construction of access by petitioner more costly. Additionally, petitioner Wandermere alleged, and was entitled to the opportunity to prove, that the open ditch would seriously damage or constitute a taking of valuable interests and rights in an existing underground water table.\nIn short, we conclude that petitioner Wandermere was entitled to an injunction prohibiting the Department of Highways from further construction of the drainage facility *698 until such time as petitioner's damages had been ascertained and paid, and the \"character\" of respondent department's interference with petitioner's interests in the underground water table had been established. The injunction could, and we think should, have been granted by the trial court in the instant case.\nNevertheless, any victory in this regard by petitioner at the present stage of the proceedings may be rendered a somewhat \"Pyrrhic\" one, for it would indeed be a futile and useless gesture for this court now to prohibit and enjoin an activity which is completed. While it is true that this court will, by mandate, compel the undoing of acts which have been illegally done (Farnsworth v. Wilbur, 49 Wash. 416, 95 P. 642, 19 A.L.R. 320 (1908)), respondent's actions in completing the project during the pendency of this litigation were not illegal in an ultimate and compelling constitutional sense. We have previously held that, upon denial of a temporary restraining order, the defending party may assume that it has the right to proceed with the construction sought to be enjoined. Steele v. Queen City Broadcasting Co., 54 Wash. 2d 402, 341 P.2d 499 (1959). Additionally, in the instant case, petitioner's alleged damages may be fully determined and adjudicated upon remand.\nFor the reasons indicated, the case should be remanded for determination of petitioner's damages. It is so ordered.\nHAMILTON, C.J., ROSELLINI, HUNTER, HALE, SHARP, and WRIGHT, JJ., and RYAN, J. Pro Tem., concur.\nNEILL, J., concurs in the result.\nPetition for rehearing denied November 11, 1971.\n", "ocr": false, "opinion_id": 2614098 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 38, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv1883-16", "author_id": 1763, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\nGULF RESTORATION NETWORK, :\nINC., et al., :\n :\n Plaintiffs, :\n :\n v. : Civil Action No. 09-1883 (GK)\n :\nNATIONAL MARINE FISHERIES, :\nSERVICE, et al., :\n :\n Defendants. :\n______________________________:\n :\nOCEAN CONSERVANCY, :\n :\n Plaintiff, :\n :\n v. : Civil Action No. 09-1884 (GK)\n :\nNATIONAL MARINE FISHERIES :\nSERVICE, et al., :\n :\n Defendants. :\n\n MEMORANDUM OPINION\n\n Plaintiffs Gulf Restoration Network, Inc., Food & Water Watch,\n\nand Ocean Conservancy (collectively, “Plaintiffs”) brought this\n\naction against Defendant National Marine Fisheries Services\n\n(“NMFS”), James W. Balsiger, National Oceanic and Atmospheric\n\nAdministration, and Gary Locke, United States Secretary of Commerce\n\n(collectively, “Defendants”), alleging that the Fishery Management\n\nPlan for Regulating Offshore Marine Aquaculture in the Gulf of\n\nMexico violates provisions of the Magnuson-Stevens Fishery and\n\nConservation Management Act and the National Environmental Policy\n\nAct.\n\f This matter is before the Court on Defendants’ Motion to\n\nDismiss [Dkt. No. 8] for lack of subject matter jurisdiction\n\npursuant to Rule 12(b)(1) and failure to state a claim for which\n\nrelief can be granted pursuant to Rule 12(b)(6). Upon\n\nconsideration of the Motions, Opposition, Reply, and the entire\n\nrecord herein, and for the reasons stated below, NMFS’ Motion to\n\nDismiss is granted.\n\nI. BACKGROUND\n\n A. Statutory Background\n\n Plaintiffs allege violations of the Magnuson-Stevens Fishery\n\nConservation and Management Act (“MSA”), 16 U.S.C. §§ 1801 et seq.,\n\nthe National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-\n\n4337 et seq., and the Administrative Procedure Act (“APA”) 5 U.S.C.\n\n§ 702 et seq.\n\n The Department of Commerce, through NMFS,1 regulates the\n\nnation’s marine fisheries, pursuant to the MSA. The MSA\n\nestablishes eight Regional Fishery Management Councils composed of\n\nfederal officials, state officials, and private parties that are\n\nappointed by the Secretary of Commerce. 16 U.S.C. § 1852. These\n\nCouncils are responsible for developing fishery management plans\n\n\n1\n NMFS is the agency within the Department of Commerce’s\nNational Oceanic and Atmospheric Administration (“NOAA”) to which\nNOAA has delegated authority and stewardship duties of fisheries\nmanagement under the MSA. Compl. ¶¶ 9-10. The Secretary of\nCommerce acts through the NMFS to implement fishery management\nplans. Defs.’ Mot. at 4; 16 U.S.C. § 1855(d).\n\n -2-\n\f(“FMPs” or “Plans”) for fisheries in federal waters within the\n\nUnited States Exclusive Economic Zone (“EEZ”), id. at § 1853, which\n\nincludes ocean water from three to two hundred miles offshore.\n\n Once a Council has developed a Plan, the MSA requires that the\n\nSecretary of Commerce review it. The Secretary must determine\n\nwhether the FMP comports with ten national standards provided for\n\nin the MSA, as well as “any other applicable law.” Id. at §§ 1854,\n\n1851 (setting forth national standards). Additionally, the\n\nSecretary must “immediately publish in the Federal Register a\n\nnotice stating that the plan . . . is available and that written\n\ninformation, views, or comments of interested persons on the plan\n\nor amendment may be submitted to the Secretary during the 60-day\n\nperiod beginning on the date the notice is published.” Id. at §\n\n1854(a)(1)(B).\n\n The MSA then instructs that the Secretary shall “approve,\n\ndisapprove, or partially approve a plan or amendment within 30 days\n\nof the end of the comment period . . . by written notice to the\n\nCouncil.” Id. at § 1854(a)(3). The Act also contemplates a\n\nscenario where the Secretary does not approve or disapprove the\n\nFMP: “If the Secretary does not notify a Council within 30 days of\n\nthe end of the comment period of the approval, disapproval, or\n\npartial approval of a plan or amendment, then such plan or\n\namendment shall take effect as if approved.” Id. In other words,\n\n\n\n\n -3-\n\fif the Secretary fails to act, the FMP automatically becomes\n\neffective.\n\n At the same time the Council submits its FMP to the Secretary,\n\nit also submits regulations for its implementation to the\n\nSecretary. Id. at § 1853(c). The Secretary then must conduct a\n\nreview of the regulations which is similar to that conducted for\n\nthe Plan--i.e. determine consistency with national standards,\n\napplicable law, and the FMP. Before the regulations become final,\n\nthe MSA requires that the “Secretary shall notify the Council in\n\nwriting of [any] inconsistencies and provide recommendations on\n\nrevisions that would make the proposed regulations consistent with\n\nthe fishery management plan, plan amendment, this chapter, and\n\nother applicable law.” Id. at § 1854(b)(1)(B). Unlike the\n\nprocedure governing adoption of the FMP, the MSA contains no\n\nprovision that allows the regulations to take effect by operation\n\nof law if the Secretary takes no action. See id. at § 1854(b)\n\n B. Factual Background\n\n One of the eight Councils, the Gulf of Mexico Fishery\n\nManagement Council (“Gulf Council”), drafted the FMP at issue in\n\nthis case to authorize commercial offshore aquaculture facilities\n\nin the Gulf of Mexico’s EEZ. The Gulf Council approved the FMP on\n\nJanuary 27, 2009. Decl. of Kevin W. McCardle [Dkt. No. 9], Ex. 2\n\n\n\n\n -4-\n\fat 1.2 It sets forth a plan for a regional permitting process for\n\ncommercial offshore aquaculture in federal waters. Id. at 1-2.\n\nThe Council submitted its proposed regulations to NMFS with its FMP\n\non February 24, 2009. Id. at Cover. The comment period began the\n\nday the notice was published, which was June 4, 2009, and closed\n\nAugust 3, 2009.3 Id. NMFS had 30 days, or until September 2,\n\n2009, id., to approve, partially approve, or disapprove the FMP by\n\nwritten notice to the Council. 16 U.S.C. § 1854(a)(3).\n\n Offshore aquaculture is the farming of aquatic animals in open\n\nocean areas, most often through the use of floating or submerged\n\nnet-pens or cages. McCardle Decl., Ex. 1 at 15. If the Council’s\n\nFMP is implemented, an estimated five to 20 offshore aquaculture\n\noperations would be permitted over the next ten years, with an\n\nestimated annual production of up to 64 million pounds of fish.\n\nId. at 1. The Council cites an increase in demand for protein and\n\n\n\n2\n On September 23, 2009, Kevin W. McCardle, Department of\nJustice counsel for Defendants, submitted a Declaration attaching\nfour exhibits. [Dkt. No. 9] Exhibit 1 contains excerpts from the\nAquaculture FMP. Exhibit 2 is a September 3, 2009, letter from\nNMFS to the Gulf of Mexico Fishery Management Council. Exhibit 3\nis a September 3, 2009, press release issued by Defendants.\nExhibit 4 is a list of “Frequently Asked Questions,” along with\nanswers to those questions, downloaded from Defendants’ website\n(http://sero.nmfs.noaa.gov/sf/pdfs/Aquaculture%20FAQs%\n202009-09.pdf). The Court will cite these documents as “McCardle\nDecl., Ex. # at #.”\n3\n Food & Water Watch submitted comments on the FMP on August 3,\n2009, and a joint comment with Gulf Restoration Network on July 31,\n2009. Ocean Conservancy submitted comments on August 3, 2009.\n\n\n -5-\n\fseafood as the justification for this proposed change to\n\naquaculture from “commercial wild-capture fisheries [that] are\n\nbeing fished at or above sustainable levels and are likely unable\n\nto meet such growing demand.” Id.\n\n The FMP submitted by the Gulf Council incorporated a\n\nProgrammatic Environmental Impact Statement (“PEIS”). The lengthy\n\ndocument presented ten discrete actions that would comprise the\n\naquaculture plan. See id. at 25-101 (discussing, inter alia,\n\nrequirements for permits, applications, durations of the permits,\n\nsiting requirements, and recordkeeping and reporting). For each\n\nproposed action, the FMP analyzed three management alternatives\n\nthat described how each action could be implemented. Id. at 10-14\n\n(summarizing actions and alternatives). The relevant portions of\n\nthe Council’s preferred version of the FMP are summarized as\n\nfollows:\n\n 1. An aquaculture permit would be required for\n conducting offshore marine aquaculture. Such a\n permit would authorize the deployment and operation\n of an offshore aquaculture facility and the sale of\n allowable aquaculture species. Dealer permits are\n required in order to receive cultured organisms and\n are non-transferable. Aquaculture permits are\n transferable (except under limited conditions) and\n eligibility is limited to United States citizens\n and permanent resident aliens.\n\n 2. Application and operational requirements, as well\n as permit restrictions would be established. Some\n application requirements include submitting an\n application, providing general contact information,\n descriptions of systems and equipment, site\n location coordinates, and an emergency disaster\n plan. Operational requirements include a use-it-\n\n -6-\n\f or-lose-it provision, documentation that broodstock\n are marked or tagged at the hatchery, certification\n that animals are pathogen free, and various\n monitoring requirements. The use of drugs,\n biologics, and pesticides must be in compliance\n with federal agency regulations.\n\n 3. An aquaculture permit would be effective for ten\n years and may be renewed in five-year increments.\n\n 4. The aquaculture of all species native to the Gulf\n and those listed in the aquaculture fishery\n management unit would be allowed, with the\n exception of shrimp and corals.\n\nMcArdle Decl., Ex. 1 at 10-13.\n\n Before a permit application is approved, a Regional\n\nAdministrator (“RA”) must review it and make a preliminary\n\ndetermination as to whether it merits further consideration. See\n\nid. at viii, 2. If so, notice of the application is published in\n\nthe Federal Register, along with notice of NOAA’s intent to grant\n\nthe permit. There is then a comment period of 15-45 days, during\n\nwhich members of the public may testify at a Council meeting. The\n\napplicant also has an opportunity to appear at a Council meeting.\n\nWhen the public comment period ends, the RA notifies the applicant\n\nof the decision to grant or deny the permit, provides reasons for\n\nthat decision, and publishes notice of approval or disapproval in\n\nthe Federal Register. Id. at 2.\n\n Additionally, the EPA and Army Corps of Engineers (“Corps”)\n\nhave some responsibility over permitting offshore aquaculture. Id.\n\nat 246, 251-52. In order to proceed with an aquaculture operation,\n\nan applicant must obtain a permit for the construction of offshore\n\n -7-\n\faquaculture facilities from the Corps, pursuant to the Rivers and\n\nHarbor Act. See 33 U.S.C. § 403; id. at 246. Under the Clean\n\nWater Act, 33 U.S.C. § 1328, the EPA has the authority to grant or\n\ndeny discharge permits for aquaculture operations. Both permitting\n\nprocesses include a public notice and comment period. See McCardle\n\nDecl., Ex. 1 at 251-52.\n\n On September 3, 2009, the Fishery Management Plan for\n\nRegulating Offshore Marine Aquaculture in the Gulf of Mexico [“the\n\nFMP” or “the Aquaculture FMP”] took effect by operation of law.\n\nPursuant to § 1854(a) of the MSA, the Gulf Council submitted its\n\ncompleted FMP and proposed regulations to NMFS for Secretarial\n\nreview. 16 U.S.C. § 1854(a). Upon receipt of the FMP, NMFS\n\nimmediately commenced review of the plan to determine if it was\n\nconsistent with the ten national standards for fishery conservation\n\nand management, other provisions of the MSA, and any other\n\napplicable law. Id. at § 1854(a)(1)(A).\n\n As noted earlier, if NMFS decides to partially approve or\n\ndisapprove an FMP, it must follow the procedure outlined in §§\n\n1854(a)(3)(A-C). In this case, NMFS took the “unprecedented\n\napproach” of not following this process. McCardle Decl., Ex. 2 at\n\n1. Instead it took no action, thereby invoking the MSA provision\n\nthat states:\n\n If the Secretary [i.e. NMFS] does not notify a\n Council within 30 days of the end of the\n comment period of the approval, disapproval,\n or partial approval of a plan or amendment,\n\n -8-\n\f then such plan or amendment shall take effect\n as if approved.\n\n16 U.S.C. § 1854(a)(3). Thus, the FMP took effect by operation of\n\nlaw on September 3, 2009, as a result of the Secretary’s inaction.\n\n On September 3, 2009, NMFS wrote a letter to the Council\n\nexplaining why it had not acted on the FMP within the 30-day\n\nstatutory period. NMFS explained that the scope of the FMP went\n\nfar beyond any aquaculture measures previously submitted and that\n\nit raised “important issues of national policy regarding the manner\n\nin which offshore aquaculture is regulated in the EEZ.” See\n\nMcCardle Decl., Ex. 2 at 1-2. Given the broad scope of the FMP,\n\nNMFS advised the Council that “it was not prudent to take action on\n\nthe FMP in the absence of a comprehensive national policy” that\n\ncould foster the development of environmentally sound offshore\n\naquaculture operations. See id. NMFS explained:\n\n As we develop a national policy, we will also\n examine the Plan in the context of that\n policy. If we determine the Plan is\n inconsistent with that policy, we will\n consider appropriate action, which could\n include seeking amendment or withdrawal of the\n [P]lan through the Magnuson-Stevens Act.Id.\n\n That same day NMFS issued a press release publicly announcing\n\nits intent to develop such a national policy and stated that\n\nalthough the FMP had taken effect, regulations must be published\n\nbefore permits could be issued. McCardle Decl., Ex. 3 at 1.B.\n\n\n\n\n -9-\n\f B. Procedural History\n\n On October 2, 2009, Plaintiffs filed two similar lawsuits\n\nalleging violations of the MSA, NEPA, and the APA. The Court\n\nconsolidated the two lawsuits on November 10, 2009. Order (Nov. 10,\n\n2009)[Dkt. No. 6].\n\n The Complaints allege four claims against NMFS. Claim One\n\nalleges that NMFS’ failure to approve, disapprove, or partially\n\napprove the Aquaculture FMP within 30 days, as provided for by 16\n\nU.S.C. § 1854(a)(3), constitutes unlawfully withheld agency action\n\nunder the MSA and APA. Compl. ¶¶ 72-77. Claim Two alleges that\n\nNMFS’ decision to allow the Aquaculture FMP to take effect under 16\n\nU.S.C. § 1854(a)(3) was ultra vires under the MSA and APA. Id. ¶¶\n\n78-82. Claims Three and Four allege that NMFS’ decision to allow\n\nthe Aquaculture FMP to take effect was unlawful because the FMP\n\nviolates substantive provisions of the MSA and procedural\n\nrequirements of NEPA.4 Id. ¶¶ 83-88; 89-96. Plaintiffs seek\n\ndeclaratory and injunctive relief.\n\n On November 23, 2009, Defendants filed a Motion to Dismiss\n\nPlaintiffs’ Complaints for lack of subject matter jurisdiction\n\n\n4\n NEPA requires federal agencies to fully consider and disclose\nthe environmental consequences of an agency action. 42 U.S.C. §\n4332(2)(c). NEPA requires that an agency prepare an environmental\nimpact statement (“EIS”) for major federal actions that\nsignificantly affect the quality of the human environment. Id.\n“Other statutes may impose substantive environmental obligations on\nfederal agencies, . . . but NEPA merely prohibits uninformed--\nrather than unwise--agency action.” Robertson v. Methow Valley\nCitizens Council, 490 U.S. 332, 351 (1989).\n\n -10-\n\fpursuant to Rule 12(b)(1), and, in addition or in the alternative,\n\nfor failure to state a claim for which relief can be granted\n\npursuant to Rule 12(b)(6). Defs.’ Mot. at 1. Defendants argue\n\nthat Plaintiffs’ Complaints should be dismissed because (1)\n\nPlaintiffs lack Article III standing; (2) Plaintiffs’ claims are\n\nunripe; and (3) Plaintiffs lack a statutory cause of action through\n\nwhich Congress has waived sovereign immunity. Id. at 1.\n\n Plaintiffs filed an Opposition to Defendants’ Motion on\n\nDecember 11, 2009, claiming that (1) Plaintiffs have Article III\n\nstanding; (2) Plaintiffs’ claims are ripe; and (3) Plaintiffs have\n\nstatutory causes of action in which Congress has waived sovereign\n\nimmunity. Pls.’ Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”) at 1 [Dkt.\n\nNo. 11]. Defendants filed their Reply in Support of their Motion\n\nto Dismiss on December 18, 2009. Defs.’ Reply Memorandum in\n\nSupport of Defs.’ Mot. (“Defs.’ Reply”) [Dkt. No. 14].\n\nII. STANDARD OF REVIEW\n\n Defendants ask the Court to dismiss the Plaintiffs’ claims\n\nunder Rules 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), the\n\nplaintiff bears the burden of proving by a preponderance of the\n\nevidence that the Court has subject matter jurisdiction to hear the\n\ncase. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir.\n\n2008). In reviewing a motion to dismiss for lack of subject matter\n\njurisdiction, the Court must accept as true all of the factual\n\nallegations set forth in the Complaint; however, such allegations\n\n\n -11-\n\fwarrant closer scrutiny when resolving a 12(b)(1) motion than when\n\nresolving a 12(b)(6) motion. See Macharia v. United States, 334\n\nF.3d 61, 64 (D.C. Cir. 2003). The Court may consider matters\n\noutside the pleadings. See Herbert v. Nat’l Acad. of Sciences, 974\n\nF.2d. 192, 197 (D.C. Cir. 1992). The Court may rest its decision\n\non the Court’s own resolution of disputed facts. Id.\n\n To survive a motion to dismiss under Rule 12(b)(6), a\n\nplaintiff need only plead “enough facts to state a claim to relief\n\nthat is plausible on its face” and to “nudge [] [his or her] claims\n\nacross the line from conceivable to plausible.” Bell Atl. Corp. v.\n\nTwombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated\n\nadequately, it may be supported by showing any set of facts\n\nconsistent with the allegations in the complaint.” Id. at 563.\n\n Under the Twombly standard, a “court deciding a motion to\n\ndismiss must not make any judgment about the probability of the\n\nplaintiff’s success . . . the court must assume all the allegations\n\nin the complaint are true (even if doubtful in fact) . . . [and]\n\nmust give the plaintiff the benefit of all reasonable inferences\n\nderived from the facts alleged.”5 Aktieselskabet AF 21. November\n\n\n5\n As noted, supra at n. 2, Defendants included a Declaration\nfrom counsel with four exhibits. Plaintiffs submitted additional\nmaterial as part of counsel Stephen E. Roady’s Declaration [Dkt.\nNo. 12]. The exhibits to the Roady Declaration included\ndeclarations from four members of Plaintiff-organizations, a\ncomplete copy of the Aquaculture FMP, and copies of Plaintiffs’\ncomment letters filed in response to the Aquaculture FMP. Roady\nDecl. at 2. All of the documents in Defendants’ Declaration were\n (continued...)\n\n -12-\n\f2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal\n\nquotation marks and citations omitted).\n\n Pursuant to the APA, an agency decision must be set aside if\n\nit is “arbitrary, capricious, an abuse of discretion, or otherwise\n\nnot in accordance with law.” 5 U.S.C. § 702(2)(A). “The arbitrary\n\nand capricious standard [of the APA] is a narrow standard of\n\nreview.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401\n\nU.S. 402, 416 (1971). It is well established in our Circuit that\n\n“[t]his court’s review is . . . highly deferential” and “we are\n\n‘not to substitute [our] judgment for that of the agency’ but must\n\n‘consider whether the decision was based on a consideration of the\n\nrelevant factors and whether there has been a clear error of\n\njudgment.’” Bloch v. Powell, 348 F.3d 1060, 1070 (D.C. Cir. 2003)\n\n(citations and internal quotation marks omitted); see also United\n\nStates v. Paddack, 825 F.2d 504, 514 (D.C. Cir. 1987).\n\n If the “agency’s reasons and policy choices . . . conform to\n\n‘certain minimal standards of rationality’ . . . the [agency\n\n\n\n(...continued)\nreferred to in the Complaint. The same is true for the final three\nexhibits to Plaintiffs’ Declaration (the four individual\ndeclarations are relevant only to the jurisdictional inquiry).\nTherefore, the Motion to Dismiss under Rule 12(b)(6) need not be\nevaluated under a summary judgment standard. See EEOC v. St.\nFrancis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir.\n1997); Marshall v. Honeywell Tech. Solutions Inc., 536 F. Supp. 2d\n59, 65 (D.D.C. 2008) (stating that “where a document is referred to\nin the complaint and is central to the plaintiff’s claim, such a\ndocument attached to the motion papers may be considered without\nconverting the motion to one for summary judgment”).\n\n -13-\n\fdecision] is reasonable and must be upheld.” Small Refiner Lead\n\nPhase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C. Cir. 1983)\n\n(citation omitted); see Kisser v. Cisneros, 14 F.3d 615, 619 (D.C.\n\nCir. 1994).\n\nIII. ANALYSIS\n\n In their Motion to Dismiss, Defendants argue that the Court\n\nlacks subject matter jurisdiction and Plaintiffs fail to state a\n\nclaim upon which relief can be granted. They advance three primary\n\nreasons for their position. First, Defendants claim that\n\nPlaintiffs lack Article III standing because they suffered no\n\nactual or imminent injury attributable to the Aquaculture FMP.\n\nDefs.’ Mot. at 14. Second, Defendants argue that Plaintiffs’\n\nclaims are unripe because NMFS’ agency action is not final and no\n\naquaculture has been permitted or taken place; therefore, no injury\n\nhas occurred and the matter is unfit for judicial review. Id. at\n\n21-22. Third, Defendants argue that Plaintiffs cannot rely on the\n\nMSA or the APA, as neither waives sovereign immunity to provide\n\nPlaintiffs with a cause of action in the instant case. Id. at 26-\n\n30.\n\n A. Plaintiffs Do Not Have Standing to Challenge Defendants’\n FMP.\n\n Article III of the Constitution “confines the federal courts\n\nto adjudicating actual ‘cases’ and ‘controversies.’” Allen v.\n\nWright, 468 U.S. 737, 750 (1984). Because standing is an element\n\nof the case or controversy requirement, a court does not have\n\n -14-\n\fsubject matter jurisdiction if a plaintiff lacks standing. See In\n\nre Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008). (“One of\n\nthe controlling elements in the definition of a case or controversy\n\nunder Article III is standing.”) (quoting Hein v. Freedom From\n\nReligion Found., Inc., 551 U.S. 587, 598 (2007)); see Boston &\n\nMaine Corp. v. Surface Transp. Bd., 364 F.3d 318, 319 (D.C. Cir.\n\n2004) (when a plaintiff lacks standing, the court lacks subject\n\nmatter jurisdiction).\n\n “[A]n association has standing to bring suit on behalf of its\n\nmembers when: (a) its members would otherwise have standing to sue\n\nin their own right; (b) the interests it seeks to protect are\n\ngermane to the organization’s purpose; and (c) neither the claim\n\nasserted nor the relief requested requires the participation of\n\nindividual members in the lawsuit.” Hunt v. Wash. State Apple\n\nAdvertising Comm’n, 432 U.S. 333, 343 (1977). Plaintiffs invoke\n\nfederal jurisdiction, and therefore bear the burden of showing that\n\nthey have standing. Lujan v. Defenders of Wildlife, 504 U.S. 555,\n\n561 (1992). To do so, Plaintiffs may establish either substantive\n\nor procedural standing. See Nat’l Parks Conservation Ass’n v.\n\nManson, 414 F.3d 1, 4-5 (D.C. Cir. 2005). “[W]hen,” as here, “the\n\n[party] is not [herself or himself] the object of the government\n\naction or inaction he challenges, standing is not precluded, but it\n\nis ordinarily ‘substantially more difficult’ to establish.” Lujan,\n\n504 U.S. at 562.\n\n\n -15-\n\f 1. Substantive Standing\n\n In Lujan, 504 U.S. 555, 560-61 (1992), the Supreme Court\n\nestablished that the following three elements are required for\n\nsubstantive standing:\n\n First, the plaintiff must have suffered an\n “injury in fact”--an invasion of a legally\n protected interest which is (a) concrete and\n particularized, and (b) “actual or imminent,\n not ‘conjectural’ or ‘hypothetical.’” Second,\n there must be a causal connection between the\n injury and the conduct complained of--the\n injury has to be “fairly . . . trace[able] to\n the challenged action of the defendant, and\n not . . . th[e] result [of] the independent\n action of some third party not before the\n court.” Third, it must be “likely,” as\n opposed to merely “speculative,” that the\n injury will be “redressed by a favorable\n decision.”\n\n504 U.S. at 560-61 (internal citations omitted). Defendants\n\nchallenge only the first element, namely that there is no injury in\n\nfact. Defs.’ Mot. at 3.\n\n Plaintiffs assert that they will suffer imminent injury\n\nbecause the FMP has “become operational” by default. Pls.’ Opp’n\n\nat 14-15. Plaintiffs’ affidavits enumerate the types of harm they\n\nas individuals expect to incur. For example, Louis Skrmetta, a\n\nmember and director of Gulf Restoration Network, claims that,\n\n“[i]ndividually and combined, aquaculture facilities in the Gulf of\n\nMexico will hurt [his] personal interest in the well-being of the\n\nGulf, as well as [his] business by damaging the ecosystem and\n\nharming wild fish populations.” Skrmetta Decl. at ¶ 2. Defendants\n\n\n -16-\n\fmaintain that Plaintiffs’ hypothetical injuries amount to mere\n\ncontingencies and, accordingly, fail to establish standing. Id.\n\n Aquaculture has not taken place in the Gulf of Mexico pursuant\n\nto the FMP. The FMP neither forbids nor requires any action on the\n\npart of parties. Most importantly, several steps must be taken\n\nbefore any concrete harm to Plaintiffs could possibly result from\n\nthe FMP. Such steps include: approval of regulations by NMFS,\n\nadoption of regulations, approval of permits by the various\n\ngovernment bodies on a case-by-case basis, and regulation of the\n\nlocation of aquaculture sites by NMFS, the Army Corps of Engineers,\n\nand the EPA. See supra at I.B. The FMPs alone do not have any\n\nregulatory effect because implementing regulations must be approved\n\nin order to effectuate them. 16 U.S.C. § 1854(b)(1); see N.C.\n\nFisheries Ass’n v. Gutierrez, 550 F.3d 16, 17 (D.C. Cir. 2008)\n\n(“[Fishery management p]lans . . . do not themselves have any\n\nregulatory effect--implementing regulations must also be enacted in\n\norder to effectuate them.”); Hall v. Evans, 165 F. Supp. 2d 114,\n\n143 (D.R.I. 2001) (“It is the Secretary of Commerce, and not the\n\nCouncils, who is authorized to promulgate a regulation.”). In the\n\ninstant case, therefore, the fact that the Aquaculture FMP took\n\neffect by operation of law does not mean that aquaculture is\n\nongoing in the Gulf of Mexico.\n\n Plaintiffs’ own declarations and arguments demonstrate that no\n\nharm is particularized or imminent. Cf. Lujan, 504 U.S. at 560-61\n\n\n -17-\n\f(Court examined declarations submitted by plaintiffs to determine\n\nwhether standing existed). For instance, in describing the\n\npotential threat presented by acquaculture, Skrmetta states that\n\nbecause the FMP, if implemented, “will authorize aquaculture\n\nfacilities and operations to exercise exclusive use of certain\n\nareas of the Gulf of Mexico,” he and others will be barred from\n\n“even traveling through those areas.” Skrmetta Decl. at ¶10.\n\nSimilarly, Tracy Redding, a member of Ocean Conservancy, claims\n\nthat the FMP would injure her interests. However, her concerns,\n\nlike Skrmetta’s, are not imminent and particularized, but are\n\ndependent upon a chain of events that might occur “if aquaculture\n\ngoes forward,” since the FMP “facilitates development of open ocean\n\naquaculture which is expected” to lead to injurious impacts.\n\nRedding Decl. at ¶¶ 5-6. Additionally, Plaintiffs in their\n\nOpposition state that “[m]embers ‘suffer[] a cognizable injury from\n\nenvironmental damage,’ to these waters that aquaculture is likely\n\nto create.” Pls.’ Opp’n at 14 (citations omitted)(emphasis added).\n\nThey claim that the FMP is a “first step” for “commercial\n\naquaculture operations to commence,” and their declarations focus\n\non injuries that they “expect to suffer.” Id. at 4-6. Even\n\nPlaintiffs’ description of the injury they “expect to suffer”\n\nsuggests that the harm is conjectural, rather than imminent.\n\n Our Court of Appeals has concluded that an injury is not\n\n“actual, imminent, or ‘certainly impending’” for standing purposes\n\n\n -18-\n\fwhere a party “can only aver that any significant adverse effects\n\n. . . ‘may’ occur at some point in the future.” Ctr. for\n\nBiological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 478\n\n(D.C. Cir. 2009) (hereinafter “CBD”). The injury in this case is\n\njust as conjectural as that described in CBD. In that case, an oil\n\nand gas leasing program was in the first step of a multi-stage\n\nstatutory process. Id. at 479. The Court found that petitioners\n\nfailed to establish standing because their alleged injury from\n\nclimate change was too general. Id. at 478. The Court held that\n\npetitioners relied on too tenuous a causal link between their\n\nallegations of climate change and the first stage of the leasing\n\nprogram.6 Id. Plaintiffs’ claims in the instant case are equally\n\ngeneral and attenuated since they describe possible future harms\n\ninstead of concrete present injury.\n\n Plaintiffs maintain that Defendants have “invent[ed]\n\nadditional hurdles to review” in describing the permitting process\n\nundertaken by the EPA and Corps. Pls.’ Opp’n at 16. Because the\n\n\n6\n The CBD Court distinguished a recent Supreme Court case, on\nwhich Plaintiffs rely, that dealt with standing in environmental\nlawsuits. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Court\nheld that the State of Massachusetts had standing to challenge the\nEPA’s denial of a rule-making petition where the alleged injury was\nan increase in greenhouse gas emissions. 549 U.S. at 526. Our\nCourt of Appeals noted that the Supreme Court relied heavily on the\nfact that a State, and not a private individual, was bringing the\nclaim. CBD, 563 F.3d at 476. Additionally, the State itself,\nwhich owned a great deal of the land to be affected, had already\nbeen directly injured by the EPA’s inaction in Massachusetts. Id.\nNeither of these two important factors are present in this case,\nand therefore Massachusetts does not further Plaintiffs’ case.\n\n -19-\n\fFMP governs the siting and size of the aquaculture facility,\n\nPlaintiffs argue that approval by EPA and the Corps does not make\n\nthe harm to Plaintiffs any less imminent. Id. This objection is\n\nwithout merit. The FMP requires that both agencies issue permits\n\nbefore aquaculture actually takes place. See supra at I.B. As\n\nsuch, the potential injury is more attenuated, because other\n\nagencies must act before any facilities can be constructed or begin\n\noperation. See Atl. States Legal Found. Inc., v. EPA, 325 F.3d\n\n281, 285 (D.C. Cir. 2003) As the Court said in CBD, “[t]he more\n\nindirect the chain of causation between the government’s conduct\n\nand the plaintiff’s injury, the less likely the plaintiff will be\n\nable to establish . . . standing.” CBD, 563 F.3d at 478.\n\n Plaintiffs rely on American Oceans Campaign v. Daley, 183 F.\n\nSupp. 2d 1 (D.D.C. 2000), to support their position. In Daley,\n\nthis Court found that plaintiffs had standing where essential fish\n\nhabitat (“EFH”) Amendments to regional FMPs failed to “adopt[]\n\nmeasures that would restrict fishing gear in order to minimize\n\nadverse effects of fishing related activities on EFH.” Id. at 5.\n\nThe Court found that NMFS’ acts and omissions with respect to the\n\nEFH Amendments had caused Plaintiffs actual harm, thereby giving\n\nthem standing to bring suit. Id. at 10.\n\n Daley does not purport to say that the passing of any FMP or\n\namendment thereto gives standing to those potentially in harm’s\n\nway, regardless of how conclusory the allegations of that harm may\n\n\n -20-\n\fbe. Id. Rather, Daley held that where an agency activity has\n\ncaused “particularized injuries,” those harmed will have standing.\n\nId. Whereas the EFH Amendments at issue in Daley regulated ongoing\n\ncommercial fishing activity, the Aquaculture FMP merely constructs\n\na framework within which Defendants may permit an entirely new\n\nactivity that has yet to occur. This fact makes mere approval of\n\nthe Aquaculture FMP too far removed from harmful conduct to\n\nestablish injury.\n\n Article III simply does not grant power to courts to preempt\n\npotential harm that is neither actual nor imminent, and Plaintiffs\n\ntherefore lack substantive standing to bring suit against\n\nDefendants.\n\n 2. Procedural Standing\n\n Gulf Restoration argues that Plaintiffs also have procedural\n\nstanding to bring their challenges under NEPA and the MSA. Pls.’\n\nOpp’n at 20. They allege that by allowing the Aquaculture FMP to\n\ntake effect by operation of law NMFS violated procedures set forth\n\nin each statute. Id. at 21.\n\n Plaintiffs have procedural standing “if [they] can show that\n\nan agency failed to abide by a procedural requirement that was\n\n‘designed to protect some threatened concrete interest of the\n\nplaintiff.’” See CBD 563 F.3d at 479. Such procedural omissions\n\ndo not alone give standing to sue, but rather “a procedural-rights\n\nplaintiff must show not only that the defendant’s acts omitted some\n\n\n -21-\n\fprocedural requirement, but also that it is substantially probable\n\nthat the procedural breach will cause the essential injury to the\n\nplaintiff’s own interest.” See id. The Supreme Court has noted\n\nthat when determining procedural standing, “the requirement of\n\ninjury in fact is a hard floor of Article III jurisdiction that\n\ncannot be removed by statute.” Summers v. Earth Island Institute,\n\n129 S. Ct. 1142, 1151 (2009); see WebCel Commc’n, Inc. v. FCC, 1999\n\nWL 325450, at *1 (D.C. Cir. Apr. 28, 1999) (“To have standing to\n\nchallenge an alleged procedural violation, a party must demonstrate\n\nthat it has suffered an injury caused by the substantive action\n\ntaken by the agency.”).\n\n Based on Summers, a procedural right without some attached\n\nconcrete interest that is affected by a deprivation--what is called\n\na procedural right “in vacuo”--is insufficient to establish Article\n\nIII standing. Summers, 129 S. Ct. at 1151. Standing is\n\nappropriate when there is a “live dispute over a concrete\n\napplication of those regulations.” See id. at 1147. As discussed,\n\nthe instant case does not present such a “live dispute.”\n\nPlaintiffs have not yet suffered--and may never suffer--injury as\n\na result of Defendants’ action or inaction. Therefore Plaintiffs’\n\nclaims do not, under Summers, provide grounds for procedural\n\nstanding. See City of Orrville, Ohio v. FERC, 147 F.3d 979, 986\n\n(D.C. Cir. 1998) (“Since plaintiffs lack standing to challenge [the\n\nagency’s] substantive actions, they indeed lack standing to\n\n\n -22-\n\fchallenge procedural defects in the process that produced those\n\nactions.”) (quoting Wilderness Soc’y v. Griles, 824 F.2d 4, 19\n\n(D.C. Cir. 1987)).\n\n Plaintiffs seek to invoke CBD to show that procedural standing\n\nwould apply in the instant case. However, procedural standing\n\nexisted in CBD because the plaintiffs showed a threatened\n\nparticularized interest and submitted affidavits detailing\n\ndefinitive dates as to when they would be deprived of the\n\nopportunity to observe potentially harmed species. 563 F.3d at\n\n479. This supplemental detail was integral to the Court’s ultimate\n\ndetermination because it helped outline how a procedural remedy\n\nwould redress their harm. See id.\n\n In the instant case, the Plaintiffs are not able to provide\n\nsuch detailed dates of injury, but rather put forth declarations of\n\nconjectural, potential future injuries. See Pls.’ Opp’n at 4. For\n\nexample, Michael Tad Burke, a member of Food & Water Watch, claims\n\nto have “serious expectation[s] that some customers will choose to\n\ngo elsewhere” if the FMP takes effect. Decl. of Michael Tad Burke\n\nat ¶ 24. Obviously, this is pure conjecture; it does not supply\n\nany specific information; it does not describe any injury which is\n\nimminent; it does not describe any injury which actually exists.\n\nSee Lujan, 504 U.S. at 560-61. Tim Adams, a member of Ocean\n\nConservancy, discusses the impacts that he “expects” will occur if\n\naquaculture takes place, including harms to aquatic life. Decl. of\n\n\n -23-\n\fTim Adams at ¶ 4. In contrast, the affidavits in CBD identified\n\ntheir injuries, and included specific dates and species. For these\n\nreasons, because Plaintiffs cannot show injury in fact, they lack\n\nprocedural standing to bring suit against Defendants.\n\n B. Plaintiffs’ Claims Are Not Ripe for Adjudication.\n\n The primary rationale behind the ripeness requirement is “to\n\nprevent the courts, through avoidance of premature adjudication,\n\nfrom entangling themselves in abstract disagreements.” Abbott\n\nLaboratories v. Gardner, 387 U.S. 136, 148 (1967). Accordingly,\n\nthe “ripeness doctrine is drawn both from [Constitutional]\n\nlimitations on judicial power and from prudential reasons for\n\nrefusing to exercise jurisdiction.” Reno v. Catholic Soc. Serv.,\n\nInc., 509 U.S. 43, 57 n. 18 (1993). A claim must be both\n\nConstitutionally and prudentially ripe to be adjudicated. Wyo.\n\nOutdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir.\n\n1999).\n\n Plaintiffs have alleged that their claims are both\n\nConstitutionally and prudentially ripe. Apart from alleging injury\n\nis imminent, Plaintiffs maintain that because “the Gulf FMP is now\n\nfinal, [it] will govern and predetermine virtually all of the\n\ncontent of the final regulations and permitting framework.” Pls.’\n\nOpp’n at 24. To Plaintiffs, the FMP represents the outer limits of\n\nany future implementing regulations, and as such, is effectively a\n\nregulation itself. In short, the Aquaculture FMP as a form of\n\n\n -24-\n\fagency action is, in their view, sufficiently final to satisfy all\n\nripeness requirements. Pls.’ Opp’n at 24-25. Defendants respond\n\nthat NMFS’ agency action is not final in part because the FMP and\n\nthe regulations are distinct. Plaintiffs therefore could not have\n\nbeen injured, nor is it certain that they will be in the future.\n\nDefs.’ Mot. at 22. Defendants view the non-finality issue as\n\ndispositive with respect to the ripeness of Plaintiffs’ claims.\n\nId. at 23.\n\n 1. Constitutional Ripeness\n\n “Article III does not allow a litigant to pursue a cause of\n\naction to recover for an injury that is not ‘certainly impending.’”\n\nWyo. Outdoor Council, 165 F.3d at 48 (quoting Nat’l Treasury\n\nEmployees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir.\n\n1996)). Like the Article III case and controversy requirements for\n\nstanding, a plaintiff must also suffer present or imminent injury\n\nin fact to establish Constitutional ripeness. See Wyo. Outdoor\n\nCouncil, 165 F.3d at 48 (“Just as the [C]onstitutional standing\n\nrequirement for Article III jurisdiction bars disputes not\n\ninvolving injury-in-fact, the ripeness requirement excludes cases\n\nnot involving present injury.”). As discussed above, Plaintiffs\n\nhave demonstrated neither actual injury in fact, nor that harm is\n\nimminent. See supra at III.A.1. Plaintiffs’ claims therefore are\n\nnot Constitutionally ripe.\n\n\n\n\n -25-\n\f 2. Prudential Ripeness\n\n Courts apply a two-prong test to determine whether a case is\n\nripe for adjudication. See Abbott Laboratories, 267 U.S. at 149.\n\nFirst, a court must evaluate the “fitness of the issue for judicial\n\ndecision” and second, “the hardship to the parties of withholding\n\ncourt consideration.” Id. Courts balance these two factors when\n\ndeciding whether a case is ripe for adjudication. Id.\n\n When considering fitness, courts must ask if the issue “is\n\npurely legal, whether consideration of the issue would benefit from\n\na more concrete setting, and whether the agency’s action is\n\nsufficiently final.” Atl. States Legal Found. Inc., v. EPA, 325\n\nF.3d 281, 284 (D.C. Cir. 2003) (hereinafter “Atlantic States”)\n\n(quoting Clean Air Implementation Project v. EPA, 150 F.3d 1200,\n\n1204 (D.C. Cir. 1998)).\n\n Plaintiffs make the following claims in their Complaint: (1)\n\nthat NMFS has “unlawfully withheld action required by the Magnuson\n\nAct”; (2) that NMFS has “no statutory authority to authorize\n\ncommercial aquaculture or issue commercial aquaculture permits in\n\nfederal waters”; (3) that the Gulf FMP is “arbitrary and\n\ncapricious” because it is inconsistent with the MSA; and (4) that\n\n“the Gulf FMP and accompanying PEIS violate NEPA, the APA and\n\nvarious procedural and data analysis requirements of NEPA and its\n\nimplementing regulations.” Pls.’ Compl. ¶¶ 72-96. “Claims that an\n\nagency’s action is arbitrary and capricious or contrary to law\n\n\n -26-\n\fpresent purely legal questions.” Atlantic States, 325 F.3d at 284.\n\nEach of Plaintiffs’ arguments represent a purely legal claim.\n\n However, “even purely legal issues may be unfit for review.”\n\nAtlantic States, 325 F.3d at 284. The other factors of the fitness\n\nrequirement must also be taken into account. The second of these\n\nfactors requires that the setting at the time suit is brought be\n\nsufficiently concrete to resolve the issue. Id. Our Court of\n\nAppeals has held that judicial “[r]eview is inappropriate when the\n\nchallenged policy is not sufficiently fleshed out to allow the\n\ncourt to see the concrete effects and implications of its decision\n\nor when deferring consideration might eliminate the need for review\n\naltogether.” Chamber of Commerce of the U.S. v. Reich, 57 F.3d\n\n1099, 1100 (D.C. Cir. 1995) (citations and internal quotations\n\nomitted).\n\n In the current case, the process prescribed by the MSA with\n\nrespect to FMP implementation has not been satisfactorily “fleshed\n\nout.” NMFS has yet to promulgate regulations or actually allow any\n\naquaculture to proceed. Not only is the process incomplete, but\n\nalso, as previously discussed, several of the remaining steps could\n\nresult in drastically different outcomes including the denial of\n\nany and all aquaculture permits. McArdle Decl., Ex. 1 at 10-13\n\n(explaining proposed alternative procedures for the permitting\n\nprocess). Plaintiffs’ exposure to harm relates directly to these\n\n\n\n\n -27-\n\fresults. If aquaculture is denied altogether in the Gulf, injury\n\nto Plaintiffs will not even be a possibility.\n\n In support of their claims, Plaintiffs allege that “the Gulf\n\nFMP threatens a broad range of Plaintiffs’ members’ particularized\n\ninterests causing injury in fact.” Pls.’ Opp’n at 10 (emphasis\n\nadded). Indeed, Plaintiffs frequently use the word “likely” to\n\ndescribe the harm in question, recognizing the tenuous nature of\n\ntheir claims. For example, they argue that “the harm to the Gulf\n\nof Mexico ecosystem that is likely to attend open ocean aquaculture\n\noperations would adversely affect Plaintiffs’ members.” Id. at 4\n\n(emphasis added).\n\n In addition, Plaintiffs submitted declarations attempting to\n\nenumerate the types of harm they as individuals expect to incur.\n\nSee supra at III.A.1. The present setting, however, is not\n\nsufficiently concrete because not only has injury not yet occurred,\n\nbut future injury is not imminent. Michael Tad Burke claims that\n\nhis job as a professional fishing guide gives him an economic\n\ninterest in the well-being of the aquatic life in the Gulf. While\n\nhe is firm about the effects that acquaculture “will” have, Decl.\n\nof Michael Tad Burke at ¶¶ 13-16, the list of injuries does not\n\ndescribe impacts particular to him, but asserts the effects that\n\naquaculture in general may have. Tracy Redding, a member of Ocean\n\nConservancy, speculates that the FMP could mean that she “would not\n\nenjoy consuming fish produced by aquaculture to the same degree”\n\n\n -28-\n\fand that she “would lack information to determine if [she] were\n\neating farmed fish or wild-caught fish if aquaculture goes\n\nforward.” Decl. of Tracy Redding at ¶ 5. These injuries are far\n\nfrom concrete. Not only do they rely on the operation of\n\naquaculture that is not yet even permitted by regulation, but we do\n\nnot know what such future regulations might require regarding\n\ninformation to consumers.\n\n As in Atlantic States, these claims are not sufficiently\n\nfleshed out to demonstrate ripeness. In that case, the EPA adopted\n\nregulations permitting New York State utility companies to\n\naccumulate hazardous waste without first obtaining a permit. 325\n\nF.3d at 282. Before these regulations took effect, New York had to\n\nadopt EPA’s regulations subject to public notice and comment.\n\nAdditionally, the utility companies were not required to\n\nparticipate in the regulatory scheme. Our Court of Appeals found\n\nsua sponte that the questions presented were not ripe. Id. at 284.\n\nThe Court reasoned that “[e]ven if New York does adopt the\n\nregulations en masse, we still would not know which utilities will\n\nopt into the program or where they will locate their central\n\ncollection facilities.” Id. Similarly, the affidavits in this case\n\ndo not clearly define when or how Plaintiffs would be affected. As\n\nthe Atlantic States Court observed, a “claim is not ripe for\n\nadjudication if it rests upon contingent future events that may not\n\n\n\n\n -29-\n\foccur as anticipated, or indeed may not occur at all.” Id.\n\n(quoting Texas v. United States, 523 U.S. 296, 300 (1998)).\n\n Lastly, as to the finality requirement, our Court of Appeals\n\nhas previously held that agency action is not final where “it does\n\nnot itself adversely affect [the plaintiffs] but only affects\n\n[their] rights adversely on the contingency of future\n\nadministrative action.” DRG Funding Corp. v. Sec’y of Hous. &\n\nUrban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996) (hereinafter “DRG\n\nFunding”).\n\n Plaintiffs argue that the Aquaculture FMP is final because it\n\nbecame law by default. Pls.’ Opp’n at 24. They rely on the\n\nrationale that because the “Gulf FMP will govern and predetermine\n\nvirtually all of the content of the final regulations and\n\npermitting framework,” it is effectively final. Id. This\n\nreasoning fails to meet the standard established in DRG Funding.\n\nDespite the statute’s requirement that the regulations be\n\n“consistent with the [FMP],” there is simply no way to predict\n\nexactly how the end product--the FMP and its implementing\n\nregulation--will ultimately operate. 16 U.S.C. § 1854(b)(1).\n\n Several variables will significantly affect how, and whether,\n\nthe Aquaculture FMP impacts the Gulf: the NMFS determination of\n\nwhether the Plan is consistent with the national policy it intends\n\nto develop; the text of the future regulations; approval or\n\ndisapproval of permits by the various government bodies on a case-\n\n\n -30-\n\fby-case basis; and the as-yet unknown locations of future\n\naquaculture sites. Accordingly, Plaintiffs’ characterization of\n\nthe FMP as “final,” when compared to the standard for finality\n\nestablished in DRG Funding, is not accurate. DRG Funding, 76 F.3d\n\nat 1214.\n\n The end result of this analysis is that Plaintiffs’ claims,\n\nalthough they do present legal questions, are still not fit for\n\njudicial review for two reasons: first, because Plaintiffs’ claims\n\nwould “benefit from a more concrete setting” where injury has\n\nactually taken place; and second, because they currently relate to\n\nagency action that is not final. Atlantic States, 325 F.3d at 284.\n\n In the absence of fitness for judicial decision, courts must\n\nlook to a balancing of the hardships to make a final assessment of\n\nripeness. Nat’l Ass’n of Home Builders v. U.S. Army Corps of\n\nEng’rs, 440 F.3d 459, 465 (D.C. Cir. 2003). Plaintiffs state that\n\nbecause “they are subject to regulation under the Gulf FMP and must\n\nchange their own behavior to avoid aquaculture sites,” the hardship\n\nscale is tipped in their favor. Pls.’ Opp’n at 30. However,\n\nPlaintiffs cannot establish that delaying suit would be\n\nsufficiently disadvantageous to their case because as of yet, they\n\nare “not required to engage in, or to refrain from, any conduct.”\n\nAtlantic States, 325 F.3d at 285. As noted, the FMP itself does\n\nnot require or forbid any action. In Ohio Forestry Association,\n\nInc. v. Sierra Club, 523 U.S. 726, 733 (1998), the Supreme Court\n\n\n -31-\n\fconcluded that hardship would not result from withholding\n\nconsideration of a matter where the terms of an agency plan “do not\n\ncommand anyone to do anything or to refrain from doing anything;\n\nthey do not grant, withhold, or modify any formal legal license,\n\npower, or authority; they do not subject anyone to any civil or\n\ncriminal liability; they create no legal rights or obligations.”\n\n As in Ohio Forestry, Plaintiffs can bring their suit at a\n\nlater time, after “harm is more imminent and more certain.” Id.\n\nDeferring consideration of the dispute until that point serves\n\nimportant interests both in avoiding “interfer[ence] with the\n\nsystem that Congress specified for the agency to reach [marine\n\nfishery] decisions,” and in judicial economy. Id. at 1671.\n\n Contrary to Plaintiffs’ position, if their claims are\n\ndismissed, they will not be barred from bringing suit at a later\n\ntime by the MSA’s “30-day statute of limitations.” 16 U.S.C. §\n\n1855(f)(1); accord Defs.’ Reply at 14 (“Because the Secretary has\n\nnot yet promulgated regulations or taken action under the\n\nregulations, the Magnuson Act’s statute of limitations has not yet\n\nbeen triggered.”); Defs.’ Reply at 2. A reading of the statute\n\nthat suggests otherwise rests on the mistaken premise that the\n\nAquaculture FMP is itself a regulation. See infra at III.C.1.\n\n Plaintiffs do not provide compelling hardship arguments to\n\noutweigh the absence of injury and fitness. Plaintiffs “may\n\nprotect all of their rights and claims by returning to court when\n\n\n -32-\n\fthe controversy ripens.” Atlantic States, 325 F.3d at 285. In\n\nshort, Plaintiffs’ claims are not ripe for judicial review.\n\n C. Plaintiffs Have No Statutory Cause of Action Under Either\n the MSA or the APA.\n\n 1. The MSA Does Not Provide for Review of the\n Aquaculture FMP.\n\n Section 1855(f)(1)-(2) of the MSA provides for judicial review\n\nof “regulations promulgated by the Secretary,” as well as other\n\n“actions taken by the Secretary under regulations which implement\n\na[n FMP].” 16 U.S.C. §§ 1855(f)(1)-(2). The statute, however, does\n\nnot specifically provide for judicial review of FMPs. Section\n\n1855(f)(1), which discusses the 30-day time frame in which a suit\n\nbrought under the MSA must be filed, unambiguously refers to the\n\npromulgation of the regulations, and not the FMPs, as the event\n\nwhich marks the beginning of that time frame. The statute clearly\n\ndistinguishes between FMPs and regulations throughout. See 16\n\nU.S.C. §§ 1854(a)-(b) (separating the procedures for FMPs and\n\nregulations into different sub-sections). The Court therefore\n\nfinds no merit in Plaintiffs’ assertion that “the MSA explicitly\n\nprovides for pre-implementation judicial review of FMPs and actions\n\nunder them.” Pls.’ Opp’n at 25.\n\n Additionally, as Defendants rightly argue, NMFS’ inaction--\n\ni.e. allowing the FMP to take effect by operation of law--cannot\n\nconstitute the promulgation of a regulation because: (1) NMFS has\n\nnot characterized the FMP as a regulation; (2) the FMP was not\n\n -33-\n\fpublished in the Federal Register or Code of Federal Regulations\n\nafter notice and comment; and (3) the FMP has no binding effect on\n\nprivate parties or on the agency. Id. at 26-27; see also Molycorp,\n\nInc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999) (noting three\n\ncriteria for determining when an agency action can constitute the\n\npromulgation of a regulation).\n\n Plaintiffs nonetheless contend that “[t]his Court has already\n\nheld that an FMP is a ‘regulation’ within the meaning of Section\n\n1855(f) such that a plaintiff may challenge it under this provision\n\neven where the FMP does not ‘result[] in the promulgation of a\n\nformal regulation.’” Pls.’ Opp’n at 33 (quoting Daley, 183 F.\n\nSupp. 2d at 10). However, Plaintiffs’ assertion oversimplifies the\n\nholding in Daley and ignores the clear text of the MSA. Daley does\n\nnot support the proposition that all FMPs constitute “regulations”\n\nunder the meaning of § 1855(f)(1)-(2), and therefore are ripe for\n\nadjudication under the MSA. Rather, Daley holds that where\n\namendments to FMPs are “applied generally to many fisheries, have\n\nfuture effect, [and] are designed to interpret and prescribe law\n\nand policy,” the Secretary’s decision to approve those amendments\n\nqualifies as a reviewable action. 183 F. Supp. 2d at 11.\n\nAdditionally, the federal defendants in Daley, which are the same\n\nentities as Defendants in this case, agreed that passage of the EFH\n\nAmendments were reviewable agency action. Id. at 10 n.4.\n\n\n\n -34-\n\f The EFH Amendments to the FMPs at issue in Daley were\n\nsubstantively different from the Aquaculture FMP here, because,\n\nunlike the EFH Amendments, the FMP does not have future effect, nor\n\ndoes it prescribe law and policy. It is merely a detailed\n\nblueprint, the full implementation of which depends on the passage\n\nof regulations and issuance of permits. See Daley, 183 F. Supp. 2d\n\nat 11. Further, in this case, unlike Daley, NMFS did not make the\n\nactive decision to approve the Council’s Plan. Daley is therefore\n\ndistinguishable from the instant case, as the EFH Amendments at\n\nissue in Daley are very different from the Aquaculture FMP at issue\n\nhere.\n\n Without any formal regulations implementing the FMP,\n\nPlaintiffs lack a statutory cause of action under § 1855(f) of the\n\nMSA.\n\n 2. Plaintiffs Have No Cause of Action under the APA\n because Defendants’ Actions Are Not Final.\n\n In the alternative, Plaintiffs argue that their claims are\n\ncognizable under §§ 706(1)-(2) of the APA. Plaintiffs allege that\n\nNMFS’ failure to approve, partially approve, or disapprove the FMP\n\nwithin the 30-day window constituted a “failure to act” resulting\n\nin unlawfully withheld agency action, or alternatively, that NMFS’\n\naffirmative decision to allow the FMP to take effect by operation\n\nof law constituted agency action, both of which are reviewable\n\nunder the APA. Compl. ¶¶ 73-88.\n\n\n\n -35-\n\f However, § 704 of the APA limits judicial review to “[a]gency\n\naction made reviewable by statute and final agency action for which\n\nthere is no other adequate remedy in a court . . . ” 5 U.S.C. §\n\n704 (emphasis added). If the agency action is not final, a court\n\ncannot adjudicate the dispute. See DRG Funding, 76 F.3d at 1215-16\n\n(holding that action by the Secretary of the Department of Housing\n\nand Urban Development was not final agency action which a court\n\ncould review under the APA). According to our Court of Appeals,\n\n“[a] final agency action is one that marks the consummation of the\n\nagency’s decisionmaking process and that establishes rights and\n\nobligations or creates binding legal consequences.” Nat’l Res.\n\nDef. Council v. EPA, 559 F.3d 561, 564 (D.C. Cir. 2009); see also\n\nDRG Funding, 76 F.3d at 1214 (quoting several formulations of\n\nfinality test).\n\n As discussed above, the FMP does not constitute final\n\nagency action without promulgation of the corresponding\n\nregulations: neither approval of the FMP nor failure to act on it\n\nmarks the end of the decisionmaking process; nor does the FMP\n\nestablish any rights or obligations or create any binding legal\n\nconsequences. Adoption of implementing regulations is mandatory;\n\nafter that point, aquaculture may begin if permits are applied for\n\nand approved.\n\n Furthermore, § 704 specifically states that “a preliminary,\n\nprocedural, or intermediate agency action” is only subject to\n\n\n -36-\n\freview upon “review of the final agency action.” 5 U.S.C. § 704.\n\nPlaintiffs therefore are incorrect that their inability to\n\nchallenge the Aquaculture FMP at this time renders any future\n\nchallenges to it “off-limits.” See Pls.’ Opp’n at 38.\n\n In this case, regardless of whether allowing the FMP to take\n\neffect by operation of law constitutes “unlawfully withheld agency\n\naction” or actual “agency action,” NMFS has not taken any final\n\nagency action which would be subject to judicial review. Here, the\n\nFMP does not “adversely affect [Plaintiffs] but only affects\n\n[their] rights adversely on the contingency of future\n\nadministrative action.” DRG Funding, 76 F.3d at 1214.\n\nConsequently, Plaintiffs do not have a statutory cause of action\n\nunder the APA, and their claims are dismissed for failure to state\n\na claim upon which relief can be granted. See Oryszak v. Sullivan,\n\n576 F.3d 522, 525 n.2 (D.C. Cir. 2009) (“Recently we clarified that\n\nthe provision of the APA limiting judicial review to ‘final agency\n\naction,’ 5 U.S.C. § 704, goes not to whether the court has\n\njurisdiction but to whether the plaintiff has a cause of action,\n\nthough some prior opinions had ‘loosely referred to the final\n\nagency action requirement as jurisdictional.’”) (citation and\n\ninternal quotations omitted).\n\n\n\n\n -37-\n\fIV. CONCLUSION\n\n For the reasons set forth above, the Defendants’ Motion to\n\nDismiss under Federal Rules of Civil Procedure 12(b)(1) and\n\n12(b)(6) is granted. An order will accompany this Memorandum\n\nOpinion.\n\n\n\n\n /s/\nAugust 12, 2010 Gladys Kessler\n United States District Judge\n\n\n\n\nCopies to: attorneys on record via ECF\n\n\n\n\n -38-\n\f", "ocr": false, "opinion_id": 2665478 } ]

[ "37 F. Supp. 2d 472" ]

[ { "author_str": "Berrigan", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 262, "opinion_text": "\n37 F.Supp.2d 472 (1999)\nTHE TIMES PICAYUNE PUBLISHING CORP.\nv.\nTHE UNITED STATES DEPARTMENT OF JUSTICE and the United States Marshals Service.\nNo. CIV. A. 98-3455.\nUnited States District Court, E.D. Louisiana.\nMarch 5, 1999.\n*473 James Richard Swanson, Correro, Fishman, Haygood, Phelps, Walmsley & Casteix, LLP, New Orleans, LA, for plaintiff.\nKathryn Weekley Becnel, U.S. Atty's. Office, New Orleans, LA, Anne L. Weismann, U.S. Dept. of Justice, Civ. Div., Washington, DC, Karyn A. Temple, U.S. Dept. of Justice, Civ. Div., Washington, DC, for defendants.\n\nORDER AND REASONS\nBERRIGAN, District Judge.\nThis action stems from efforts by the Times Picayune Publishing Company (\"Times-Picayune\") to obtain the U.S. Marshals Service booking photograph (\"mug shot\") of Edward J. DeBartolo, Jr. Mr. DeBartolo is a well known businessman in connection with his ownership of the San Francisco Forty-Niners as well as other business dealings, some of them here in Louisiana. Most recently, he pleaded guilty to federal charges arising out of a criminal investigation of former Louisiana *474 Governor, Edwin W. Edwards. On November 20, 1998, the Times Picayune filed this lawsuit under the Freedom of Information Act, 5 U.S.C. § 552, to compel the United States Marshals Service to release Mr. DeBartolo's mug shot. Presently before the Court are the parties' cross motions for summary judgment. Having considered the record, the memoranda of counsel, and the law, the Court finds in favor of the defendant.\n\nI. BACKGROUND\n\nThe facts of this case are not contested. On October 6, 1998, Edward J. DeBartolo, Jr. pleaded guilty and was sentenced, in the United States District Court for the Middle District of Louisiana, on the charge of misprision of a felony in violation of 18 U.S.C. § 4. Within hours of the plea. U.S. Marshals Service personnel processed Mr. DeBartolo. This included taking his fingerprints and his mug shot. On October 9, 1998, the Times Picayune submitted a Freedom of Information Act (\"FOIA\") request to the Marshals Service seeking copies of the mug shot. The Marshals Service denied the request by letter dated October 22, 1998. It claimed that the mug shot was exempt from disclosure under 5 U.S.C. § 552(b)(7)(C). On October 21, 1998, the Times Picayune appealed the denial of its request to the Office of Information and Privacy (OIP) of the Department of Justice.[1] OIP acknowledged receipt of the appeal by letter dated November 10, 1998. On November 20, 1998, after the time had expired for deeming its administrative remedies exhausted, 5 U.S.C. § 552(a)(6)(C), the Times Picayune filed this action in federal district court.\nOn January 15, 1999, the Times Picayune filed a Motion for Partial Summary Judgment to compel immediate disclosure of the mug shot. This was followed, on February 3, 1999, by defendant's own Motion for Summary Judgment. Because there are no genuine issues of material fact in dispute, resolution of this matter on these motions is appropriate.\n\nII. DISCUSSION\n\nA party is entitled to summary judgment if it establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The parties agree that there are no issues as to the material facts of this case. Instead, the cross motions for summary judgment call upon the Court to resolve a single, legal issue: whether disclosure of Mr. DeBartolo's mug shot \"could reasonably be expected to constitute an unwarranted invasion of personal privacy.\" 5 U.S.C. § 552(b)(7)(C). If the answer is yes, then Exemption (7)(C) precludes disclosure. If the answer is no, disclosure is required.\nThe FOIA provides for the general disclosure by government agencies of their records upon request 5 U.S.C. § 552(a). The statute was designed to \"pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.\" Avondale Industries, Inc. v. National Labor Relations Board, 90 F.3d 955, 958 (5th Cir.1996), quoting United States Department of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 547, 116 L.Ed.2d 526 (1991). It embodies \"a general philosophy of full agency disclosure.\" Halloran v. Veterans Administration, 874 F.2d 315, 318 (5th Cir.1989), quoting Department of the Air Force v. Rose, 425 U.S. 352, 360, 96 S.Ct. 1592, 1598-99, 48 L.Ed.2d 11 (1976). Recognizing that a mandatory policy of full disclosure of agency records under the FOIA would not be warranted in every circumstance, however, Congress exempted certain categories of documents from disclosure. 5 U.S.C. § 552(b)(1)-(9); Halloran, 874 F.2d at 318-19. *475 An agency that withholds information pursuant to an exemption carries the burden of proving that the exemption applies, and the district court reviews this determination de novo. 5 U.S.C. § 552(a)(4)(B); United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 1472, 103 L.Ed.2d 774 (1989) (\"Reporters Committee\").\nThe exemption relevant to this matter extends to:\n(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ...\n(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy ....\n5 U.S.C. § 552(b)(7)(C) (\"FOIA Exemption 7(C)\"). For the exemption to apply, the information requested must have been compiled \"for law enforcement purposes.\" If that threshold is met, then the specific privacy interests implicated by disclosure of the information must be identified and evaluated. Assuming a privacy interest is found to be implicated, the next step is to identify and evaluate the particular public interests that may be served by disclosure. Finally the specific privacy interests and the particular public interests are weighed to determine if the \"invasion\" of the privacy interests is \"unwarranted.\" Halloran, 874 F.2d at 319. As will be discussed below, the Marshals Service has met its burden of establishing that the FOIA Exemption 7(C) applies.\n\nA. Was Mr. DeBartolo's Mug Shot Taken \"for Law Enforcement Purposes\"?\n\nIn a series of footnotes, the Times Picayune suggests that the defendant may not be able to satisfy the threshold requirement for exemption from disclosure, namely that the mug shot is a record \"compiled for law enforcement purposes.\" Pl's Mem., Jan. 15, 1999, at 8 n. 8; Pl's Mem., Feb. 9, 1999, at 2 n. 1. The plaintiff argues that the Marshals Service took the mug shot after Mr. DeBartolo had already pleaded guilty to all charges and was sentenced. Therefore, \"it has no relationship to the enforcement of laws,\" having been taken instead \"for administrative purposes.\" Pl's Mem., Jan. 15, 1999, at 2 n. 1. The defendant aptly responds, \"administration of what[?].\" Def's Mem., Feb. 12, 1999, at 1. The Marshals Service, an undisputed law enforcement agency, took Mr. DeBartolo's mug shot for the purpose of fulfilling its legal mandate to facilitate the enforcement of federal laws through processing of individuals charged with federal crimes. See 28 C.F.R. § 0.111(j) (the agency's legal duties include \"... processing ... of prisoners held in the custody of a marshal ...\"). Clearly this qualifies as \"law enforcement purposes.\" See Detroit Free Press Inc. v. Department of Justice, 73 F.3d 93, 96 (6th Cir.1996) (finding that mug shots of federal indictees were compiled for law enforcement purposes); Jimenez v. FBI, 938 F.Supp. 21, 28 (D.D.C. 1996) (finding valid law enforcement purpose under FOIA where Marshals Service compiled documents in connection with receipt and processing of individual within Marshals Service custody). Defendant has satisfied the first element of the FOIA Exemption 7(C).\n\nB. Could Release of Mr. DeBartolo's Mug Shot be \"Reasonably Expected to Constitute an Invasion of Personal Privacy\"?\n\nThe Times Picayune contends that Mr. DeBartolo has no protectable privacy interest in his mug shot. It argues that Mr. DeBartolo is a well-known person and that his photograph has been publicly shown through the media on numerous occasions, ergo disclosure of another photograph — the mug shot — could not be a privacy invasion. Additionally, the Times-Picayune argues that Exemption 7(C) does not apply to mug shots at all.\n*476 As part of its authority, the plaintiff cites several cases holding that there is no constitutional or common law right of privacy to a mug shot, as well as cases interpreting state Freedom of Information Act statutes. See, e.g., Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976); Sorrentino v. City of Philadelphia, 1997 WL 597990, *7 (E.D.Pa.1997); Detroit Free Press v. Oakland County Sheriff, 164 Mich.App. 656, 418 N.W.2d 124, 127 (Mich.Ct.App.1987); Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133, 502 A.2d 1101, 1119 (Md. App.1986); Frith v. Associated Press, 176 F.Supp. 671, 673-76 (E.D.S.C.1959). These cases readily can be distinguished. The right of privacy formulated under the Constitution and the common law are different from the privacy interests protected under the FOIA. Reporters Committee, 489 U.S. at 763 n. 13, 109 S.Ct. at 1476 n. 13. Obviously, a state court's interpretation of a state's FOIA also is irrelevant to the meaning of the federal statute.\nIn order to determine whether Mr. DeBartolo has a privacy interest in a mug shot for purposes of the FOIA Exemption 7(C), the Court must turn to the definition of \"privacy interests\" as encompassed by the Act and as interpreted by the binding federal case law.\nThe Times Picayune relies predominantly on the Sixth Circuit decision of Detroit Free Press, Inc. v. Department of Justice, 73 F.3d 93 (6th Cir.1996). which did in fact conclude that the release of mug shots in that case did not constitute an invasion of personal privacy under Exemption 7(C). For the following reasons, this Court disagrees with that decision as being contrary to United States Supreme Court jurisprudence and also as conflicting with Fifth Circuit case law that is binding upon this Court.\nThe Supreme Court broadly defined the privacy interests protected by Exemption 7(C) in Reporters Committee. That case involved application of the FOIA exemption to \"rap sheets\" containing individual information of members of a family alleged to be involved in organized crime. The plaintiff argued that the interest in avoiding disclosure of the rap sheets \"approache[d] zero\" because the same information was already available to the public through individual searches of various court proceedings and records. Reporters Committee, 489 U.S. at 762-63, 109 S.Ct. at 1476. The Court soundly rejected what it called the plaintiff's \"cramped notion of personal privacy.\" Id. The Court found that \"both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person,\" and then turned to the definition of \"privacy\" set forth in Webster's dictionary: \"information may be classified as `private' if it is `intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.'\" Id., 489 U.S. at 763-64, 109 S.Ct. at 1476, quoting Webster's Third New International Dictionary at 1804 (1976).\nThe Fifth Circuit reiterated this broad definition of \"privacy\" in Halloran. Halloran involved an attorney's efforts to obtain under the FOIA transcripts of conversations secretly taped during a governmental investigation of fraud. The district court found that the FOIA exemptions under which the government sought to withhold information were not applicable, and ordered disclosure of the transcripts. The Fifth Circuit reversed. Significantly, it rejected as over broad the district court's declaration that there were no privacy interests implicated by the transcripts because the participants discussed only \"business activities.\" Halloran, 874 F.2d at 321. The Court explained,\nThe extent of one's privacy cannot be determined merely by making an isolated assessment of the subject nature of the information; thus for example, it is incorrect to cabin the concept of \"privacy\" by restricting a person's right to invoke it only to the personal or intimate details of his or her life.\n*477 Id. Instead, a court must also consider \"the manner in which the information relating to the individuals was obtained and whether they have a reasonable interest in preventing its public disclosure.\" Id.\nWith respect to Exemption 7(C), in particular, both the United States Supreme Court and the Fifth Circuit found significant that the original exemption, which referred to disclosures that \"would constitute\" an invasion of privacy, was statutorily broadened[2] to cover disclosures that \"could reasonably be expected to constitute\" such an invasion. Reporters Committee, 489 U.S. at 756, 109 S.Ct. at 1473; Halloran, 874 F.2d at 319. In Halloran, the Fifth Circuit explained the significance of this language:\n... we note that we are not required to determine with absolute certainty the effects of releasing the information in controversy. Indeed, as already noted, exemption 7(C) requires only that we find that the disclosure of the records or information \"could reasonably be expected to constitute\" an unwarranted invasion of privacy before nondisclosure is authorized.\nThus, courts have accepted, as valid, affidavits from government officials that identify the privacy interests at stake only in general terms, as \"[i]t is difficult if not impossible, to anticipate all respects in which disclosure might damage reputations or lead to personal embarrassment and discomfort.\" We thus do not require that the government detail the precise harm which disclosure would inflict upon the privacy interests of each individual; rather, it must only show that release of the information \"could reasonably\" result in an unwarranted invasion of privacy.\nId. 874 F.2d at 320 (internal quotation marks and citations omitted).\nApplying these principles to the case at hand leads to the conclusion that Mr. DeBartolo does have a protectable privacy interest under the FOIA in his mug shot. Contrary to the assertion of the Times Picayune, Mr. DeBartolo's mug shot is more than just another photograph of a person. Mug shots in general are notorious for their visual association of the person with criminal activity. Whether because of the unpleasant circumstances of the event or because of the equipment used, mug shots generally disclose unflattering facial expressions. They include front and profile shots, a backdrop with lines showing height, and, arguably most humiliating of all, a sign under the accused's face with a unique Marshals Service criminal identification number.\nAs in the cliche, a picture is worth a thousand words. For that reason, a mug shot's stigmatizing effect can last well beyond the actual criminal proceedings. Furthermore, just because somebody has conceded guilt does not negate that person's interest in nondisclosure of the mug shot. Halloran, 874 F.2d at 322 (\"that otherwise-private information may have been at one time or in some way in the `public' domain does not mean that a person irretrievably loses his or her privacy interests in it\").[3] A mug shot preserves, in its unique and visually powerful way, the subject individual's brush with the law for posterity. It would be reasonable for a criminal defendant, even one who has already been convicted and sentenced, to object to the public disclosure of his or her mug shot.\nMoreover, mug shots contain information that is intended for the use of a particular group or class of persons. They are taken for law enforcement purposes, and they are not routinely made available to the public. This is precisely the Webster's *478 definition of privacy adopted by the United States Supreme Court in Reporters Committee: \"not freely available to the public.\" Reporters Committee, 489 U.S. at 764, 109 S.Ct. at 1477. Additionally, as in Reporters Committee, the fact that The Times Picayune is litigating this case at all indicates that Mr. DeBartolo's mug shot is more than just another photograph that portrays \"freely available\" information.\nAs noted already, the Times Picayune relies heavily on the Sixth Circuit decision in Detroit Free Press, in which that court affirmed the district court's order to release mug shots of eight named individuals who had been indicted and were awaiting trial. Detroit Free Press, 73 F.3d at 95. The court concluded that the mug shots did not divulge any information not already known by virtue of the public indictments, and therefore no privacy interest was implicated by their release. It is noteworthy that the Detroit Free Press decision was not unanimous. The dissent argued that the unique characteristics of a mug shot did trigger a cognizable privacy interest in preventing its public disclosure. Id. at 99 (Norris, J., dissenting). As stated above, this Court respectfully disagrees with the result reached by the Sixth Circuit in Detroit Free Press.\nIn any case, Detroit Free Press is distinguishable from this case because the subjects of the mug shots in Detroit Free Press were under indictment and awaiting trial when the plaintiff made its FOIA request. The court opined that \"the need or desire to suppress the fact that the individual depicted in a mug shot has been booked on criminal charges is drastically lessened in an ongoing criminal proceeding.\" Id. at 97. It explicitly declined to consider whether Exemption 7(C) would apply in a situation such as that presently before the Court: \"We need not decide today whether the release of a mug shot by a government agency would constitute an invasion of privacy in situations involving dismissed charges, acquittals, or completed criminal proceedings.\" Id. Contrary to plaintiff's contentions, Mr. DeBartolo's decision to plead guilty reflects his desire to avoid the adverse public exposure, and further damage to his already tarnished public image, that would have accompanied prolonged criminal proceedings and, potentially, a term in prison. There is no justification to treat a criminal defendant's guilty plea as a waiver of his or her interest in suppressing a mug shot's graphic representation of that guilt.\nThe Times Picayune also argues that even if some defendants have a privacy interest in their mug shots, Mr. DeBartolo does not because he is a celebrity and a public figure. Again, the plaintiff confuses the right to privacy in a constitutional setting with the right to privacy at issue in the FOIA Exemption 7(C). While it is true that a public figure's privacy rights may be weighted differently than those of a private citizen under the First Amendment, Gertz v. Robert Welch, Inc., 418 U.S. 323, 343, 94 S.Ct. 2997, 3008-09, 41 L.Ed.2d 789 (1974), a person's status as a \"public figure\" does not eviscerate his or her privacy interests under the FOIA. See Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885, 894 n. 9 (D.C.Cir.1995) (Ross Perot's status as presidential candidate did not eliminate privacy interests for purposes of applying FOIA Exemption 7(C)). If the Times Picayune somehow obtained Mr. DeBartolo's mug shot, under most circumstances Mr. DeBartolo could not prevent the newspaper from publishing it. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 2671, 61 L.Ed.2d 399 (1979). This does not mean that he does not have a privacy interest in preventing its release to the press in the first place. To the contrary, the newspaper's First Amendment right to publish photos of Mr. DeBartolo in its possession supports the view that the Marshals Service is protecting a privacy interest by denying the Times Picayune's FOIA request.\nIndeed, the fact that Mr. DeBartolo is a well-known person may well exacerbate *479 the privacy intrusions that \"could reasonably be expected\" to result from public dissemination of his mug shot. Rival businessmen \"could reasonably be expected\" to use Mr. DeBartolo's conviction and circulate his mug shot to perpetuate his criminal association. Such efforts \"could reasonably be expected\" to trigger additional publicity about Mr. DeBartolo, including the reappearance of his mug shot in the media. \"[R]enewed publicity brings with it a renewed invasion of privacy. The renewed intrusion is subject, in its own right, to FOIA protection.\" Halloran, 874 F.2d at 322 n. 10, quoting Bast v. U.S. Department of Justice, 665 F.2d 1251, 1254 (D.C.Cir.1981). This is only one example of how the dissemination of the mug shot \"might damage reputations or lead to personal embarrassment and discomfort.\" Halloran, 874 F.2d at 320.\nThe Times Picayune also argues that Mr. DeBartolo has no privacy interest in preventing the disclosure of his mug shot because of his current notoriety as a convicted offender who may have received a generous plea bargain. It attempts to distinguish this case from The New York Times Co. v. NASA, 782 F.Supp. 628 (D.D.C.1991) (\"NASA\"). Following remand from an en banc Circuit Court decision, 920 F.2d 1002 (1990), the district court in NASA declined to order the space agency to produce a tape recording of the Challenger crews' final communications before the ill-fated space shuttle exploded, NASA previously had released a transcript of the tape, but not the tape itself. Applying reasoning that has relevance to the mug shot at issue here, the court found that although what the astronauts said may not have implicated privacy interests, \"how the astronauts said what they did, the very sound of the astronauts' words, does constitute a privacy interest.\" NASA, 782 F.Supp. at 631. The Times Picayune argues that NASA involved \"audio tapes of ... American heroes in the final moments of their lives,\" and not \"a photograph of a man who has arguably bargained his way out of a prison sentence for being involved in a public corruption scheme.\" Pl's Mem., Feb. 9, 1999, at 14. Evidently, the plaintiff would have agencies evaluate the merits of an individual's character, or profession, when determining whether that person has a privacy interest worth protecting. Nothing in the FOIA exemption requires, or even permits, this type of consideration to play a role in determining whether a privacy interest exists.\nFor all of the above reasons, this Court concludes that disclosure of Mr. DeBartolo's mug shot could reasonably be expected to constitute an invasion of his personal privacy.\n\nC. Is There a Viable Public Interest in Disclosure of Mr. DeBartolo's Mug Shot?\n\nHaving found a personal privacy interest in nondisclosure of Mr. DeBartolo's mug shot, the Court must now consider whether a viable public interest exists for its disclosure. Halloran, 874 F.2d at 319.\nSeveral well settled principles guide this Court's evaluation of the public interests allegedly involved in disclosure of Mr. DeBartolo's mug shot. First, the FOIA is designed to \"shed[ ] light on an agency's performance of its statutory duties,\" or otherwise keep citizens informed about \"what their government is up to.\" Reporters Committee, 489 U.S. at 773, 109 S.Ct. at 1481-82. Disclosing information about private citizens that happens to be in government files does not foster that purpose if it reveals little or nothing about the agency's own conduct. Second, a court must measure the public interest of disclosure solely in terms of this objective, rather than on the particular purpose for which the document is being requested. Therefore, the identity and motive of the requesting party is irrelevant. Id. at 772, 109 S.Ct. at 1481; Halloran, 874 F.2d at 323. Third, a FOIA requester does not create a legitimate public interest in disclosure through mere *480 speculation about potential public interests that possibly could be served. United States Department of State v. Ray, 502 U.S. 164, 179, 112 S.Ct. 541, 549, 116 L.Ed.2d 526 (1991) (mere speculation about hypothetical public benefits cannot outweigh significant privacy interests for purposes of Exemption 6). Finally, under Halloran, merely stating an abstract public interest is insufficient: the Court must analyze how that interest would be served by compelling disclosure in the particular case. Halloran, 874 F.2d at 323.\nThe Times Picayune advances several ways in which disclosure of the mug shot would advance the public interest by opening agency action to the light of public scrutiny. It begins with the unrefutable observation that the public has a broad legitimate interest in all aspects of the criminal justice system. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571, 100 S.Ct. 2814, 2824, 65 L.Ed.2d 973 (1980). It then proceeds to list several hypothetical situations in which disclosure of mug shots could serve this public purpose. For instance, law enforcement agencies often release mug shots so that citizens who recognize the subject may come forward with information to assist in their law enforcement duties. A compilation of mug shots can expose a racial or ethnic bias in the government's arresting process. Mug shots also can reveal evidence of possible abuse of prisoners, or refute false allegations of such abuse, and they are helpful to ensure that confessions are not physically coerced. In this specific case, the Times Picayune argues that the release of Mr. DeBartolo's mug shot is evidence that his wealth and status has not exempted him from the procedures utilized in connection with all individuals charged with federal crimes. Conversely, the photograph may demonstrate that Mr. DeBartolo did not take the process seriously or that the government allowed him leeway in the circumstances of photographing him that would not be afforded other prisoners. Pl's Mem., Feb. 9, 1999, at 16.\nAssuming, for the sake of argument, that the FOIA is designed to advance all of these undeniably legitimate interests, disclosure of Mr. DeBartolo's mug shot would not contribute to any of them. The facts surrounding the investigation of Mr. DeBartolo and his plea agreement have received extensive news coverage throughout the country.[4] The plea bargain itself is a public document. There have been no allegations of racial or ethnic bias involving Mr. DeBartolo, and if there were, his mug shot viewed alone would prove nothing. Similarly, photographs and television coverage of Mr. DeBartolo before and after his plea and processing are more than adequate to assess whether he was physically abused at the hands of the Marshals Service, of which there has also been no allegation. Finally, the fact that the plaintiff argues that the mug shot will show either that Mr. DeBartolo did, or did not, receive preferential treatment underscores the hypothetical nature of the asserted public interest at issue in this case.\nThe Court does not intend in any way to belittle the public interests asserted by the Times Picayune. The Court recognizes, as did the Sixth Circuit in Detroit Free Press, that \"[p]ublic disclosure of mug shots in limited circumstances can ... serve to subject the government to public oversight.\" Detroit Free Press, 73 F.3d at 98 (listing several hypothetical examples of such circumstances, but, having concluded that the subjects of the mug shots in that case had no privacy interest in the photographs, ultimately declining to engage in a balancing test). However, no such circumstances exist in this case. Furthermore, the Court is cognizant of the fact that the identity of the requesting party has no *481 bearing on the merits of his or her FOIA request. Reporters Committee, 489 U.S. at 771, 109 S.Ct. at 1481. If the general public has a legitimate, albeit abstract, interest in the requested information such that disclosure is warranted, \"disclosure must be made despite the fact that the party actually requesting and receiving the information may use it for less-than-lofty purposes.\" Halloran, 874 F.2d at 323. Putting aside the fact that the Times Picayune is the requesting party, and that printing the mug shot would invariably help sell newspapers, the Court still cannot discern how disclosure of Mr. DeBartolo's mug shot would serve the purpose of informing the public about the activities of their government. See Reporters Committee, 489 U.S. at 774, 109 S.Ct. at 1482 (finding that disclosure may serve to \"provide details to include in a news story, but in itself ... is not the kind of public interest for which Congress enacted the FOIA.\"). In sum, under the circumstances of this case disclosure of Mr. DeBartolo's mug shot would not serve any of the public interests the FOIA is designed to protect.\n\nD. Assuming a Viable Public Interest, Would Disclosure of Mr. DeBartolo's Mug Shot Constitute an \"Unwarranted\" Invasion of Privacy?\n\nEven if there were a viable public interest in the public disclosure of Mr. DeBartolo's mug shot, the Court still would have to balance the privacy interest in not releasing the mug shot against the public interest in its disclosure. Reporters Committee, 489 U.S. at 762, 109 S.Ct. at 1476. At this stage, the Court may consider the extent of a particular individual's privacy interest in his or her mug shot. The plaintiff uses words such as \"significant,\" \"substantial,\" and \"meaningful\" to describe the type of privacy interest that must be implicated to trigger Exemption 7(C). However, most of the cases plaintiff cites in this regard involved the FOIA Exemption 6, which places a higher burden on agencies for withholding information than Exemption 7(C).[5] More importantly, courts applying both exemptions repeatedly have held that even a modest privacy interest may outweigh a nonexistent or minimal public interest. See, e.g. Halloran, 874 F.2d at 322 (Exemption 7(C)) (a \"small and potentially uncertain invasion of privacy\" may nonetheless be \"unwarranted\" if there are no public interests supporting disclosure of the particular information); United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. at 500, 114 S.Ct. at 1015 (Exemption 6) (a \"very slight privacy interest\" may outweigh a \"virtually nonexistent\" public interest); Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C.Cir.1990) (Exemption 7(C)) (a \"minimal\" privacy interest, \"however slight,\" outweighs a nonexistent public interest); National Association of Retired Federal Employees v. Horner, 879 F.2d 873, 879 (D.C.Cir.1989) (Exemption 6) (\"[s]omething, even a modest privacy interest, outweighs nothing every time\").[6]\n*482 In this case, disclosure of the mug shot could reasonably be expected to constitute an invasion of Mr. DeBartolo's personal privacy. Even if the privacy interest is not significant — a finding that this Court does not make — the public interest in disclosure of Mr. DeBartolo's mug shot is, at best, purely speculative. Recalling that \"something ... outweighs nothing every time.\" the Court determines that the privacy interest in non-disclosure outweighs any public interest. Therefore, disclosure in this case is unwarranted.\n\nIII. CONCLUSION\n\nThe Marshals Service properly invoked FOIA Exemption 7(C) because Mr. DeBartolo's mug shot was taken for law enforcement purposes, and its disclosure could reasonably be expected to constitute an unwarranted invasion of Mr. DeBartolo's personal privacy. Accordingly, IT IS ORDERED THAT Plaintiff's Motion for Partial Summary Judgment (Rec.Doc. 9) is DENIED and Defendant's Motion for Summary Judgment (Rec.Doc. 16) is GRANTED.\nNOTES\n[1] There is no dispute as to the sequence of events in this case or that the lawsuit was timely filed. Therefore, it is not necessary to ascertain why (or how) The Times Picayune appealed the denial of its request on October 21, 1998, one day before the Marshals Service denied the request.\n[2] Pub.L. 99-570, § 1802, 100 Stat. 3207 (Oct. 27, 1986).\n[3] It is noteworthy that in Reporters Committee the Supreme Court found that even publicly available information, albeit inconvenient to uncover, implicated privacy interests. Reporters Committee, 489 U.S. at 762-64, 109 S.Ct. at 1476-77. Here, the mug shot sought is not in the public domain at all.\n[4] Counsel for the Times Picayune submitted copies of the text of 130 articles from the Times Picayune that discuss Mr. DeBartolo's role in the Edwards investigation. This \"exhibit\" filled more than 300 pages. The Court appreciates the effort, but in the future, citations will suffice.\n[5] The FOIA Exemption 6, 5 U.S.C. § 552(b)(6), permits government agencies to withhold \"personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" In United States Department of Defense v. Federal Labor Relations Authority, the Supreme Court explained:\n\nExemption 7(C) is more protective of privacy than Exemption 6: The former provision applies to any disclosure that \"could reasonably be expected to constitute\" an invasion of privacy that is \"unwarranted,\" while the latter bars any disclosure that \"would constitute\" an invasion of privacy that is \"clearly unwarranted.\"\nUnited States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 496 n. 6, 114 S.Ct. 1006, 1013 n. 6, 127 L.Ed.2d 325 (1994).\n[6] Plaintiff correctly points out that the court in Horner sought to identify a \"substantial, as opposed to a de minimis, privacy interest.\" Horner, 879 F.2d at 874. However, that case applied Exemption 6, which tilts more heavily toward disclosure than Exemption 7(C). See supra n. 5; Ripskis v. Dept. of HUD, 746 F.2d 1, 3 (D.C.Cir.1984) (Exemption 6) (\"the `clearly unwarranted' language of Exemption 6 weights the scales in favor of disclosure\"). Additionally, while the Horner court required more than a de minimis privacy interest to trigger balancing, a minimal privacy interest outweighed a nonexistent public interest in the court's application of the balancing test. Id. at 879.\n\n", "ocr": false, "opinion_id": 2415754 } ]

[ "732 F.2d 168" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/732/732.F2d.168.83-1381.html", "author_id": null, "opinion_text": "732 F.2d 168\n Ruddick Corp.v.U.S.\n 83-1381\n United States Court of Appeals,Federal Circuit.\n 3/8/84\n Cl.Ct., 3 Cl.Ct. 61\n Affirmed\n ", "ocr": false, "opinion_id": 434631 } ]

[ "266 A.2d 579", "56 N.J. 346" ]

[ { "author_str": "Haneman", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5107, "opinion_text": "\n56 N.J. 346 (1970)\n266 A.2d 579\nSTATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,\nv.\nSALVATORE PROFACI, JR., DEFENDANT-APPELLANT.\nThe Supreme Court of New Jersey.\nArgued May 5, 1970.\nDecided June 26, 1970.\n*348 Mr. Frank J. Palma argued the cause for appellant (Messrs. Santo and Palma, attorneys; Mr. Julius Zizmor on the brief).\nMr. William D. Danberry, Assistant County Prosecutor, argued the cause for the respondent (Mr. Edward J. Dolan, Middlesex County Prosecutor, attorney).\nThe opinion of the court was delivered by HANEMAN, J.\nThis case involves the constitutionality of N.J.S.A. 2A:170-29(1), a section of the Disorderly Persons Act.\nDefendant was convicted in the Municipal Court of the Township of Monroe of violating the above statute which reads:\n1. Any person who utters loud and offensive or profane or indecent language in any public street or other public place, public conveyance, or place to which the public is invited; * * *.\n\n* * * * * * * *\nIs a disorderly person.\nDefendant appealed to the Middlesex County Court which after a trial de novo on the Municipal Court record, again found him guilty. Defendant appealed to the Appellate Division which affirmed in an unreported per curiam opinion. Defendant appealed to this Court upon the ground of the existence of a substantial constitutional question. R. 2:2-1.\nThe facts as elicited at the trial are as follows: State Trooper Martens testified that on July 13, 1968, at approximately 7:00 P.M., he stopped defendant's vehicle on Bentley Road, Monroe Township, for a routine motor vehicle check. Upon discovering that his driver's license was unsigned, Martens informed defendant that he was going to issue a warning. Defendant allegedly excited from his car and while still on the road, in a loud voice, stated, \"what the f____ are you bothering me for.\" Martens advised defendant *349 that he was under arrest for using loud and profane language.\nMartens further testified that Trooper Cavaliere who had arrived on the scene minutes after defendant's car was stopped, overheard defendant utter the objectionable language. On cross-examination it developed that there was only one house on Bentley Road and that the house was set back about 300 feet from the scene of the incident. Martens stated that besides himself and Cavaliere, no one was present when the words were uttered. Trooper Cavaliere corroborated Martens' testimony that defendant made the statement containing the objectionable language.\nDefendant testified that he had not made the statement attributed to him by the State Troopers and recited a contradictory factual statement of events.\nThe main thrust of defendant's argument is that N.J.S.A. 2A:170-29(1) is so vague and indefinite that it violates the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Defendant argues that the statute neither defines the words \"loud or offensive or profane or indecent\" nor states under what circumstances the language is proscribed.\nSome basic guides for ascertaining the constitutionality of statutes bear repeating. It must be remembered that the presumption is that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner. The articulation of the elements which furnish that essential intent need not appear in the statutory language. Lomarch Corp. v. Mayor of Englewood, 51 N.J. 108 (1968). The further presumption is that a statute will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or prohibition. Daly v. Daly, 21 N.J. 599 (1956). See also Russo v. Governor of State of New Jersey, 22 N.J. 156, 170 (1956); In re Loch Arbour, 25 N.J. 258, 262 (1957); State v. Hudson County News Co., 35 N.J. 284, 294 (1961); State v. Monteleone, 36 N.J. 93, *350 99 (1961). Even though a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of this Court to so construe the statute as to render it constitutional if it is reasonably susceptible to such interpretation. Woodhouse v. Woodhouse, 17 N.J. 409 (1955).\nWe come to a consideration of the statute sub judice. The applicable principles for the ascertainment of whether this statute is unconstitutional because of vagueness, indefiniteness or overbreadth are so aptly and adequately stated in Landry v. Daley, 280 F. Supp. 938 (N.D. Ill. 1968) appeal dismissed 393 U.S. 220, 89 S.Ct. 455, 21 L.Ed.2d 392 (1968), docketed for reargument sub nom. Boyle v. Landry, 395 U.S. 955, 89 S.Ct. 2095, 23 L.Ed.2d 744 (1969), as not to require paraphrasing. The court said:\nThe concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to appraise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.\nThe concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution. Frequently, the resolution of this issue depends upon whether the statute permits police and other officials to wield unlimited discretionary powers in its enforcement. If the scope of the power permitted these officials is so broad that the exercise of constitutionally protected conduct depends on their own subjective views as to the propriety of the conduct, the statute is unconstitutional.\nThese concepts have particular relevance to statutes touching upon the areas of free speech and assembly. Although the state may regulate speech and assembly where the exercise of these rights conflicts with certain state interests, it may regulate only to the extent necessary to discharge these interests. A vague or overbroad statute, however, is likely to have a deterrent effect which is beyond that necessary *351 to fulfill the state's interests. Rather than chance prosecution, people will tend to refrain from speech and assembly which might come within the statute's ambit.\nSuch a deterrent effect on the exercise of these rights is impermissible under the First Amendment. The Amendment was designed not only to protect these rights, but also to encourage their use. Consequently, the requirements of clarity, definiteness, and narrow scope are most strictly observed when a statute places a possible limitation upon First Amendment rights. Such scrutiny is necessary to provide a buffer between the valid exercise of the police power by the state and excessive restriction of the free dissemination of ideas.\nA number of factors are taken into consideration in determining whether a state regulation meets these standards of clarity and narrowness. Among them are: (1) whether a substantial interest worthy of protection is indentified or apparent from the language of the statute; (2) whether the terms of the regulation are susceptible to objective measurement by men of common intelligence; (3) whether those charged with its enforcement are vested only with limited discretion; (4) if penal, whether some element of knowledge or intent to obstruct a state interest is required; and (5) whether its clarity is dependent upon manifold cross-reference to inter-related enactments or regulations.\" 280 F. Supp. at 951-953 (footnotes omitted).\nIn Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the court had under consideration a statute of the State of New Hampshire similar to that now under consideration which read:\n\"No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.\"\nIn assaying the constitutionality of the act, the court said at 315 U.S. 571-572, 62 S.Ct. 769, 86 L.Ed. 1035:\nAllowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, *352 the profane, the libelous, and the insulting or \"fighting\" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. \"Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument\" Cantwell v. Connecticut, 310 U.S. 296, 309, 310, 60 S. Ct. 900, 906, 84 L. Ed. 1213, [1221], 128 A.L.R. 1352.\nAnd again at 315 U.S. 573-574, 62 S.Ct. 770, 86 L.Ed. 1036:\nOn the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being \"forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.\" It was further said: \"The word `offensive' is not to be defined in terms of what a particular addressee thinks. * * * The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. * * * The English language has a number of words and expressions which by general consent are `fighting words' when said without a disarming smile. * * * Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. * * * The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker — including `classical fighting words', words in current use less `classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.\"\nWe are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S. Ct. 900, 906, 84 L. Ed. 1213, [1221], 128 A.L.R. 1352; Thornhill v. Alabama, 310 U.S. 88, 105, 60 S. Ct. 736, 745, 84 L. Ed. 1093, [1104]. This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not *353 unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277, 35 S. Ct. 383, 384, 59 L. Ed. 573, 575.\nNor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations \"damn racketeer\" and \"damn Fascist\" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.\nSee also Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572, (1969).\nSo here, although not expressly articulated, the implicit constitutional purpose of N.J.S.A. 2A:170-29(1) is two-fold, i.e., to preserve the peace and to protect the sensibilities of those persons within hearing of the person uttering the language. For a defendant to be guilty under N.J.S.A. 2A:170-29(1) the words must be spoken loudly, in a public place and must be of such a nature as to be likely to incite the hearer to an immediate breach of the peace or to be likely, in the light of the gender and age of the listener and the setting of the utterance, to affect the sensibilities of a hearer. The words must be spoken with the intent to have the above effect or with a reckless disregard of the probability of the above consequences. Accordingly, the statute is constitutional.\nHere, however, an anlysis of the facts fails to disclose that the language used under the circumstances was likely to incite a breach of the peace or to offend the sensibilities of the listener. Accordingly we find the conviction in error.\nReversed.\nFor reversal — Chief Justice WEINTRAUB and Justices FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 6.\nFor affirmance — None.\n", "ocr": false, "opinion_id": 2178497 } ]

[ "209 F.3d 1227" ]

[ { "author_str": "Briscoe", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/209/209.F3d.1227.99-2179.99-2006.html", "author_id": null, "opinion_text": "209 F.3d 1227 (10th Cir. 2000)\n UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOHN VINCENT MACKOVICH, Defendant-Appellant.\n No. 99-2006, 99-2179\n UNITED STATES COURT OF APPEALS TENTH CIRCUIT\n April 25, 2000\n \n APPEAL FROM UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-98-343-LH)[Copyrighted Material Omitted]\n Vicki Mandell-King, Assistant Federal Public Defender, (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colorado, for the appellant.\n Gregory J. Fouratt, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for the appellee.\n Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.\n BRISCOE, Circuit Judge.\n \n \n 1\n John Mackovich appeals his conviction and sentence for armed bank robbery (18 U.S.C. 2113(a) and (d)) and for using and carrying a firearm during a crime of violence (18 U.S.C. 924(c)). These convictions arose out of Mackovich's April 1998 armed robbery of the Valley Bank of Commerce in Roswell, New Mexico. Law enforcement officials quickly apprehended Mackovich and recovered the keys to the getaway vehicle, the money stolen from the bank, and the disguise used to facilitate the crime. At the time of conviction, Mackovich had two prior convictions for violent felonies. Applying what is commonly known as the \"Three Strikes\" statute, the district court sentenced Mackovich to life imprisonment. Mackovich contends on appeal that the district court erroneously (1) determined that he was competent to stand trial; (2) denied his request to fire his attorney and proceed pro se; and (3) rejected his argument that one of his prior convictions did not qualify as a \"strike\" under 18 U.S.C. 3559. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742 and affirm.\n \n I. Competency\n A. Background\n \n 2\n The district court's inquiry into Mackovich's competence began in August 1998, when Mackovich's counsel filed a \"Motion To Determine Mental Competency.\" Record on Appeal (\"ROA\"), Vol. I, Doc. 20. The court granted the motion and appointed Dr. Kenneth Bull to conduct a psychiatric examination. Dr. Bull determined that Mackovich was competent to stand trial, and submitted a one-page report setting forth his conclusions in September 1998. Approximately one month later, after Mackovich obtained a new lawyer, the government filed a motion for a supplemental psychiatric evaluation. The principal basis for the motion was that Mackovich's counsel had \"learned of new information\" relevant to Mackovich's fitness to stand trial, including \"psychiatric reports that were generated during the pendency of [Mackovich's] 1977 prosecution for armed robbery.\" ROA, Vol. I, Doc. 37 at 2 ( 6). The district court granted this motion as well. Dr. Bull conducted a supplemental examination on November 8, 1998, and submitted another report. In this second report, Dr. Bull presented \"a different psychiatric diagnosis than that derived originally. It would appear that Mr. Mackovich is not suffering primarily from a depressive disorder, but more likely a schizo-affective disorder.\" Supplemental Record on Appeal (\"SROA\"), Vol. III, Doc. 50 at 2; see also id. (stating that Mackovich \"could benefit from anti-psychotic medications in addition to the anti-depressants he is currently on\"). Nonetheless, Dr. Bull explained that \"the new information and diagnosis obtained does not affect my judgment of Mr. Mackovich's present mental competency to stand trial.\" Id.\n \n \n 3\n The court conducted an evidentiary hearing to explore Mackovich's competence in November 1998. The first witness to testify at the hearing was Dr. Bull. Dr. Bull stated that he interviewed Mackovich for 30 to 40 minutes in August 1998, and that this examination led him to believe that Mackovich was competent to stand trial. Dr. Bull explained that he interviewed Mackovich for a longer period of time during the supplemental examination in November 1998, taking into account Mackovich's \"previous psychiatric records.\" Id., Vol. II, at 6, 12-14. Dr. Bull confirmed that Mackovich was likely suffering from a schizo-affective disorder, \"sort of a cross between schizophrenia and manic depressive illness.\" Id. at 8. According to Dr. Bull, this diagnosis was \"serious\" because in some individuals a schizo-affective disorder \"renders them unable to manage their own lives.\" Id. at 8-9. In Dr. Bull's opinion, Mackovich's representation that he previously served as a \"jailhouse lawyer\" indicated that Mackovich possessed \"knowledge of the legal process.\" Id. at 9, 16-17. Dr. Bull recommended additional psychiatric treatment, but affirmed his finding of competency based on Mackovich's \"understand[ing of] the legal process and the charges against him.\" Id. at 11-12.\n \n \n 4\n The only other witness who testified at the hearing was Mackovich himself. Responding to questions posed by his counsel, Mackovich stated that he believed he would be acquitted at trial and his acquittal would trigger Armageddon. Mackovich testified that he and his sister had been receiving \"prophecies\" from God, and discussed how a burglar had broken into his house and \"shot at me and my girlfriend and . . . my dog.\" Id. at 22-23. Mackovich also stated that prosecutors in another case wrongly accused him of soliciting a bribe, but that he was exonerated at trial according to God's plan. On cross-examination, Mackovich stated that he had been helping his current attorney by \"telling him what's going to be happening, and the prophecy.\" Id. at 31. Mackovich testified that he had provided his attorney with information that permitted the attorney to file a notice of alibi. Mackovich stated that he believed he was charged with bank robbery, although he did not remember the name of the bank. Mackovich likewise did not remember his prior convictions, and indicated that he was not a \"Three Strikes\" candidate because he was innocent. Mackovich explained that he had falsely confessed to several bank robberies, including the Roswell bank robbery, because he was being pressured by prosecutors and wanted to expose government corruption.\n \n \n 5\n After receiving this testimony and considering further arguments from counsel, the district court concluded that Mackovich was competent to stand trial. The court reasoned that it\n \n \n 6\n has had the defendant examined twice, and on both occasions Dr. Bull, who is a highly qualified psychiatrist, has concluded that the defendant is competent to stand trial. That is, that he understands the nature and consequences of the proceeding against him and that he is capable of assisting properly in his defense. I find that those conclusions by Dr. Bull are correct by a preponderance of the evidence, and therefore the defendant is competent . . . .\n \n \n 7\n Id. at 46-47. Mackovich was \"especially noisy\" when the court delivered its oral ruling, making \"loud and inappropriate comments\" while sitting at his counsel's table. Id., Vol. I, Doc. 53, at 1.1 The court memorialized its ruling in a written order, stating that \"Mackovich is not presently suffering from a mental disease or defect that impairs his ability to understand the nature and consequences of the proceedings against him or that impairs his ability to assist properly in his defense.\" Id. Doc. 55.\n \n B. Analysis\n \n 8\n The Constitutional principles governing competency determinations are clearly established. \"It is settled that trying an incompetent defendant violates due process.\" Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999); see also United States v. Williams, 113 F.3d 1155, 1159 (10th Cir. 1997) (recognizing that \"the criminal prosecution of an accused person while legally incompetent offends the Due Process Clause\"). \"Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.\" Godinez v. Moran, 509 U.S. 389, 402 (1993). Accordingly, the test for competency is whether the defendant \"has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.\" Drope v. Missouri, 420 U.S. 162, 171 (1975) (quoting Dusky v. United States, 362 U.S. 402 (1960)); accord Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995).\n \n \n 9\n Our standard of review is equally clear. \"Competency to stand trial is a factual determination that can be set aside only if it is clearly erroneous.\" United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998), cert. denied, 119 S. Ct. 828 (1999). \"A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.\" United States v. Verduzco-Martinez, 186 F.3d 1208, 1211 (10th Cir. 1999) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The district court \"need not be correct,\" but its finding \"must be permissible in light of the evidence.\" Id. (citing Bill's Coal Co. v. Board of Pub. Util. of Springfield, Missouri, 887 F.2d 242, 244 (10th Cir. 1989)). When assessing a defendant's competence, \"the district court may rely on a number of factors, including medical opinion and the court's observation of the defendant's comportment.\" Boigegrain, 155 F.3d at 1189 (citation omitted); see also Williams, 113 F.3d at 1159 (indicating that a district court may review \"evidence of defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence\") (citation omitted).\n \n \n 10\n The district court's finding that Mackovich was competent to stand trial was not clearly erroneous. First, in both his testimony and his written reports, Dr. Bull concluded that Mackovich was able to understand the proceedings against him. See, e.g., SROA, Vol. III, Doc. 50 at 2 (setting forth Dr. Bull's \"professional opinion that 1) Mr. Mackovich has a rational and factual understanding of the charges against him and their consequences and 2) he has sufficient present ability to consult with his lawyer with complete rational understanding\"). Dr. Bull was the only medical expert who assessed Mackovich's competence, and the district court's reliance on his opinion is not clear error. See Verduzco-Martinez, 186 F.3d at 1212 (affirming a finding of competence based on a doctor's uncontradicted testimony); Boigegrain, 155 F.3d at 1189-90 (affirming a finding of incompetence based largely on the testimony of one psychiatrist). That much is evident from our decision in Miles: There, we held that it is not clearly erroneous for a district court to declare a defendant competent by adopting the findings of one expert and discounting the contrary findings of another. 61 F.3d at 1472-74. Second, while Mackovich admittedly \"rambled and expressed paranoia\" at certain points during the competency hearing, see Appellant's Opening Brief at 27, the district court was in a position to determine whether Mackovich's statements were genuine or feigned. After observing Mackovich's behavior during the course of the hearing, the district court apparently accepted the prosecution's argument that Mackovich was \"a desperate individual facing serious sentencing consequences\" who had \"nothing to lose\" by malingering. SROA, Vol. II, at 46. The hearing transcript also reveals that Mackovich made statements indicating that he understood the mechanics of the criminal process. Mackovich referred to \"prosecutors,\" \"public defenders,\" and \"the jury,\" implicitly acknowledged the difference between an acquittal and a conviction, and spoke of imprisonment and probation. While these statements by themselves would be insufficient to establish Mackovich's competence, see Williams, 113 F.3d at 1160 (\"That defendant can recite the charges against her, list witnesses, and use legal terminology are insufficient 'for proper assistance in the defense requires an understanding that is rational as well as factual.'\") (citations and internal quotation marks omitted), in combination with the district court's firsthand observations of Mackovich and Dr. Bull's medical opinion they preclude our concluding the district court's competency finding was clearly erroneous.\n \n \n 11\n Mackovich's remaining objections to the district court's assessment of the evidence are insufficient to establish reversible error. Mackovich emphasizes that Dr. Bull diagnosed him with a schizo-affective disorder and \"recommended psychiatric treatment and antipsychotic drugs.\" Appellant's Opening Brief at 27. Mackovich's description of Dr. Bull's diagnosis is accurate, but this circuit has long recognized that \"[t]he presence of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to . . . assist in his own defense.\" Wolf v. United States, 430 F.2d 443, 445 (10th Cir. 1970); accord Verduzco-Martinez, 186 F.3d at 1212; Miles, 61 F.3d at 1472. Mackovich also notes that his counsel \"expressed serious and concrete concerns about his competency.\" Appellant's Opening Brief at 27. As we explained in Bryson, \"[d]efense counsel is often in the best position to determine whether a defendant's competency is questionable. Nonetheless, the concerns of counsel alone are insufficient to establish doubt of a defendant's competency.\" 187 F.3d at 1201-02 (citations omitted).\n \n \n 12\n Mackovich next contends that several developments after the hearing should have caused the district court to reevaluate his competence. For example, after receiving permission to address the court on the first day of trial, Mackovich made the following statement:\n \n \n 13\n This is the flag of the United States of America. Under the Federal Rules of Civil Procedure, Rule 38(a), the plaintiff's claim of the pleading is in the Constitution of the United States of America, dated 1789, Article of the Ninth, for a hearing sworn by oath of the office. Army regulations 840-10, Chapter 21AB, states the flag of the United States will be of red, white, and blue with a star for each state and will be in the highest honored position over foreign flags and the president of the United States. Corporate flag of the fringe, by the law of the flag, the foreign flag of the fringe makes the jurisdiction foreign. Plaintiff is not an attorney of the law, plaintiff is a citizen and a party. How can a party plead to the matter by the subject in the court when the jurisdiction of venue, federal rules of court procedure, Rule 12(b)(3), has not been established or placed and erected plain under the flag with the fringe as to jurisdiction of the foreign power under the law of the flag? That the party is guilty until proven innocent, the Constitution of the United States rights are guaranteed to a citizen in the party innocent until proven guilty. Until the joinder of the federal rule of court procedure Rule 12(b) is established, no conversation can be understood.\n \n \n 14\n ROA, Vol. III, at 72-73; see also id. at 73 (indicating that the district court responded by saying \"I don't know what the purpose of that is[,] but if it's an objection to proceeding, it's overruled\"). Later, believing that he and his attorney were not adequately prepared, Mackovich opted to \"stand mute\" and refused to testify in his own defense.\n \n \n 15\n These developments do not demonstrate that the district court erred by refusing to halt the trial to reassess Mackovich's competence. It is true that \"[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.\" Drope, 420 U.S. at 181; accord Williams, 113 F.3d at 1160. Here, however, the district court's decision to proceed was not clearly erroneous for at least three reasons. First, Mackovich's \"flag fringe\" argument though indisputably frivolous was not indecipherable. Litigants in this circuit and elsewhere assert with some frequency that a flag adorned with yellow fringe is \"foreign\" and thus robs the trial court of jurisdiction. See Wacker v. Crow, No. 99-3071, 1999 WL 525905, at *1 (10th Cir. July 1, 1999) (unpublished disposition) (deeming \"frivolous\" the argument that the presence of a flag with yellow fringe precluded jurisdiction and \"effectively commuted the district court into a foreign power\"); Hancock v. Utah, No. 98-4139, 1999 WL 288251, at *1, *2, *3 (10th Cir. May 10, 1999) (unpublished disposition) (rejecting a plaintiff's argument that state officials \"violated his right to due process by placing yellow fringe around the American flag\"); Murray v. Wyoming, No. 98-8095, 1999 WL 140517, at *1 (10th Cir. Mar. 16, 1999) (unpublished disposition) (dismissing as \"meritless\" a plaintiff's argument that the district court and a state penitentiary lacked jurisdiction to adjudicate his claims \"on the ground that both institutions display a flag with yellow fringe\").2 Second, the district court did, in fact, briefly revisit the issue of competency after Mackovich complained about the flag. The district judge stated during trial that \"earlier I had a competency hearing to decide on the competency of the defendant, and I ruled that he was competent, and my opinion has not changed.\" ROA, Vol. III, at 196. Third, Mackovich made several remarks before and during trial that suggested he understood the proceedings. Prior to jury selection, for instance, Mackovich implicitly acknowledged that he was charged with robbery when he requested permission to wear at trial the clothes he had on at the time of his arrest: \"I had new clothes that the FBI took as evidence and apparently they're not matching any description of the robber. I don't see any reason why I shouldn't be having these to wear, Your Honor.\" Id., Vol. II, at 10.3 Mackovich likewise demonstrated at least passing familiarity with courtroom rules and procedures when he objected at trial to the government's motion to require him to wear the disguise used by the bank robber: \"Your Honor, there haven't been any hair samples or fibers to match or testing. I would object to this as being highly prejudicial, anyway.\" Id., Vol. IV, at 442. The district court's repeated findings of competency are supported by the record and are not clearly erroneous.\n \n II. Self-Representation\n A. Background\n \n 16\n Mackovich's claim that the district court denied his constitutional right to self-representation revolves around the following facts. On October 30, 1998, one month prior to the November 30, 1998, trial date, the district court issued an order notifying the parties of the trial date. On November 13, 1998, the district court found Mackovich competent to stand trial. Six days later, Mackovich's attorney filed a motion seeking leave to withdraw as counsel, noting that he had been \"discharged\" by Mackovich. SROA, Vol. I, Doc. 57, at 1. Mackovich's attorney filed a motion for a continuance on November 23, 1998, stating (among other things) that Mackovich \"discharged Counsel on November 16, 1998 and is attempting to represent himself. Apparently [Mackovich] has filed his own motions, including an entry pro se and others that defense counsel has not seen or had an opportunity to review. A rift currently exists between counsel and client.\" Id., Doc. 61, at 1.\n \n \n 17\n In a written order dated November 24, 1998, the district court denied the motion for a continuance, as well as the motion by Mackovich's counsel to withdraw. At the outset, the court observed that\n \n \n 18\n Defendant's counsel makes reference to some motions authored by Mr. Mackovich himself including a motion to proceed pro se, however, no motions other than those filed by counsel have been as yet filed with the Court. At the request of the Court, the Defendant's counsel has been provided with copies of these \"pro-se\" motions. Although not formally before the Court, the issues raised in the Defendant's pro se Motion for Substitution of Counsel and pro se Motion for Continuance of Trial, are similar to those filed by his counsel . . . .\n \n \n 19\n ROA, Vol. I, Doc. 56, at 2 (citation omitted). The court found that \"[t]he vague reference by counsel to an effort by Mr. Mackovich to represent himself is not sufficient to trigger an inquiry into whether the Defendant is attempting to knowingly and voluntarily waive his right to counsel.\" Id. As an alternative basis for denying the motion, the court concluded that, even assuming Mackovich's request to proceed pro se could be characterized as unequivocal, it was untimely and an effort to delay the trial:\n \n \n 20\n This case has been set for trial since June 8, 1998, and after the Court granted Defendant's three previous motions for continuances, the current setting was noticed at the end of October of this year. The Defendant has been represented by Mr. McIntyre since September 29, 1998, and it was not until Mr. McIntyre failed to secure a plea agreement to the Defendant's liking that Mr. Mackovich apparently began to seek to represent himself. This request, even if made today, would be untimely. The Defendant's motion has not yet been filed and the trial is set to commence in five days. Clearly, this is merely an effort to again delay the trial, and is an abuse of the judicial process. The Court will not countenance such tactics. Notwithstanding the Court's understanding that Mr. Mackovic[h] may wish to represent himself, the Court will not commence with a hearing on this issue as no formal request is currently before the Court and such a request would be untimely.\n \n \n 21\n Id. at 3 (citations omitted).\n \n \n 22\n Mackovich next made mention of a desire to represent himself shortly before the commencement of trial on November 30, 1998. Prior to jury selection, Mackovich confirmed that he had attempted to file motions with the court. He asserted that neither he nor his attorney was ready to try the case,4 and that it would be unjust and a \"farce\" if he did not receive \"at least a few weeks' time to allow [him] to prepare and gather witnesses.\" ROA, Vol. II, at 13. Mackovich renewed his \"motion for a continuance to allow Mr. McIntyre a chance to prepare,\" and then indicated that he would have \"a better chance\" if he proceeded pro se because \"Mr. McIntyre doesn't have one witness on my behalf.\" Id. at 13-14. Mackovich closed by reiterating his request \"for a continuance to represent myself or to seek other counsel.\" Id. at 14. When the district court denied Mackovich's oral motion on the grounds stated previously in the November 24 order, Mackovich spoke again: \"Your Honor, without being prepared for this trial and without having effective assistance of counsel, I refuse to participate. I stand mute, and I wish to have an order for my attorney to stand mute. This would just be a mockery of justice. I don't want him to participate in it; neither do I.\" Id. at 15.\n \n B. Analysis\n \n 23\n A criminal defendant has a constitutional and a statutory right to self-representation. The former is expressly recognized in Faretta v. California, 422 U.S. 806, 834-36 (1975), while the latter derives from 28 U.S.C. 1654. When exercised, the right of self-representation \"usually increases the likelihood of a trial outcome unfavorable to the defendant.\" McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984). As a result, \"its denial is not amenable to 'harmless error' analysis. The right is either respected or denied; its deprivation cannot be harmless.\" Id.; accord United States v. Baker, 84 F.3d 1263, 1264 (10th Cir. 1996). To invoke the right, a defendant must meet several requirements. First, the defendant must \"clearly and unequivocally\" assert his intention to represent himself. United States v. Floyd, 81 F.3d 1517, 1527 (10th Cir. 1996). Second, the defendant must make this assertion in a timely fashion. United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995). Third, the defendant must \"knowingly and intelligently\" relinquish the benefits of representation by counsel. Boigegrain, 155 F.3d at 1179. To ensure that the defendant's waiver of counsel is knowing and intelligent, the trial judge should \"conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se.\" United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991); accord United States v. Padilla, 819 F.2d 952, 959 (10th Cir. 1987).\n \n \n 24\n Mackovich contends on appeal that the district court misapplied these decisions when it denied his request to proceed pro se. When evaluating such a claim, we review the district court's finding of historical facts for clear error. Boigegrain, 155 F.3d at 1185. We review de novo whether a constitutional violation actually occurred. Id.; cf. United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir. 1997) (stating that \"[w]e review de novo the question of whether a waiver of counsel is voluntary, knowing, and intelligent\" under the Sixth Amendment).\n \n \n 25\n We turn first to the requirement that a defendant \"clearly and unequivocally\" assert his intention to represent himself. This requirement \"is necessary to protect against an inadvertent waiver of the right to counsel by a defendant's occasional musings on the benefits of self-representation.\" United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000) (internal quotations omitted). The requirement \"also prevents a defendant from taking advantage of and manipulating the mutual exclusivity of the rights to counsel and self-representation.\" Id. at 559; see United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir. 1994) (\"We have repeatedly shown concern with the use of the right to waive counsel as a 'cat and mouse' game with the courts.\"); United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990) (quoting United States v. McMann, 386 F.2d 611, 618-19 (2d Cir. 1968), for the proposition that a defendant cannot \"by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel\"). \"In ambiguous situations created by a defendant's vacillation or manipulation, we must ascribe a 'constitutional primacy' to the right to counsel because this right serves both the individual and collective good, as opposed to only the individual interests served by protecting the right of self-representation.\" Frazier-El, 204 F.3d at 559 (quoting United States v. Singleton, 107 F.3d 1091, 1102 (4th Cir. 1997)); see generally Martinez v. Court of Appeal of Cal., 120 S. Ct. 684, 691 (2000) (\"Even at the trial level, . . . the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.\").\n \n \n 26\n Here, the district court made two factual findings relevant to the \"clear and unequivocal\" requirement. See Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir. 1994) (noting that the question of whether a defendant invoked his right to self-representation in an unequivocal manner is a question of fact). First, it found that the references to Mackovich's interest in representing himself were \"vague\" and insufficient \"to trigger an inquiry into whether [Mackovich] [wa]s attempting to knowingly and voluntarily waive his right to counsel.\" ROA, Vol. I, Doc. 56 at 2. Second, the district court found that, even assuming the references to self-representation were clear, they were \"merely an effort to again delay the trial, and [were] an abuse of the judicial process.\" Id. at 3.\n \n \n 27\n Without passing on the district court's finding that Mackovich's requests were too vague to trigger an inquiry5, we conclude the evidence contained in the record on appeal is more than adequate to support the district court's finding that Mackovich's requests for self-representation were merely a tactic for delay. The record in this case reveals that before Mackovich lodged his request for self-representation, he (1) utilized appointed counsel for more than seven months, (2) appeared in court with his attorney on multiple occasions, and (3) sought and received three other continuances. The record also reveals that Mackovich (4) requested leave to represent himself only six to ten days before trial, (5) based his request for self-representation in part on his counsel's refusal to file a variety of frivolous motions (e.g., \"Motion for An Identity Hearing, Exculpatory Motions, and Motion for Bail.\"), (6) coupled his request for self-representation made on the first day of trial with yet another \"motion for continuance to prepare,\" and (7) threatened to \"stand mute\" and withhold his participation when the district court denied his request. These facts adequately support the district court's finding that Mackovich asserted his right to self-representation in an attempt to delay the trial and abuse the judicial process. Cf. Frazier-El, 204 F.3d at 560 (affirming district court's finding that defendant's request for self-representation was merely a manipulative effort to assert frivolous defenses that defense counsel was unwilling to assert); United States v. George, 56 F.3d 1078, 1084 (9th Cir. 1995) (affirming a similar finding made by a district court in part because the defendant \"sought a continuance in conjunction with his motion to proceed pro se,\" previously requested additional continuances, and \"could and should have brought\" his motion for self-representation \"earlier than the eve of trial\"); Hamilton, 28 F.3d at 862 (concluding that a defendant's \"apparent motive\" was delay because he waited several months and then requested self-representation on the ground that \"he was not prepared for the trial and wanted a continuance to ready his defense\"); Robards v. Rees, 789 F.2d 379, 383-84 (6th Cir. 1986) (concluding that granting the request for self-representation, made the day that the trial began, \"would have impermissibly delayed the commencement of the trial\"). The district court did not err in rejecting Mackovich's request for self-representation when it found the request was made to delay the trial. As Mackovich's requests were made for purposes of delay, they were not in fact unequivocal requests for self-representation.\n \n III. Sentencing\n \n 28\n Mackovich also challenges the district court's application of 18 U.S.C. 3559(c), popularly known as the \"Three Strikes\" statute. Specifically, Mackovich argues the district court erred in concluding his 1977 robbery conviction qualified as a \"serious violent felony\" under 3559(c), and that the statute's placement of the burden of proof on the defendant to establish by clear and convincing evidence that the conviction is a nonqualifying felony is unconstitutional.\n \n \n 29\n The statute requires a trial court to \"sentence to life in prison any person who is convicted in federal court of a 'serious violent felony' if that person has previously been convicted in state or federal court of two or more 'serious violent felonies.'\" United States v. Gottlieb, 140 F.3d 865, 866 (10th Cir. 1998) (quoting 3559(c)(1)). The offense of robbery is \"generally considered a 'serious violent felony' for purposes of the Three Strikes statute.\" Gottlieb, 140 F.3d at 866 (citing 3559(c)(2)(F)); see also United States v. Oberle, 136 F.3d 1414, 1423 (10th Cir.) (\"The term 'serious violent felony' generally includes robbery under 18 U.S.C. 2113.\"), cert. denied, 119 S. Ct. 197 (1998). However, not all serious violent felonies count as \"strikes.\" The statute provides that a crime is a \"nonqualifying felony\" if the defendant establishes, by clear and convincing evidence, that\n \n \n 30\n (i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and\n \n \n 31\n (ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person.\n \n \n 32\n 18 U.S.C. 3559(c)(3)(A); accord United States v. Romero, 122 F.3d 1334, 1342 (10th Cir. 1997).\n \n \n 33\n At the sentencing hearing in the instant case, the government submitted judgments of conviction indicating that Mackovich previously committed two other robberies in Arizona. These included a conviction for armed robbery in 1982 and a conviction for simple robbery in 1977. The government also submitted offense reports and a written confession relating to the 1977 conviction. Among other things, these documents demonstrated that Mackovich used a firearm to rob a convenience store. Mackovich unsuccessfully objected to the admission of the documents, but did not offer additional proof to rebut them. Rather, Mackovich maintained that under Taylor v. United States, 495 U.S. 575 (1990), the district court was required to limit its consideration to the 1977 judgment of conviction. The district court ruled that Taylor was \"not on point,\" that the 1977 conviction was a \"serious violent felony,\" and that Mackovich failed to show that the 1977 conviction was a \"nonqualifying\" offense. The court accordingly imposed a sentence of life imprisonment.\n \n \n 34\n A brief discussion of the Taylor decision is in order. The Taylor Court was called upon to determine the meaning of the word \"burglary\" under 18 U.S.C. 924(e). 495 U.S. at 577. Section 924(e) provides a sentence enhancement for a defendant who is convicted of unlawfully possessing a firearm \"and who has three prior convictions for specified types of offenses, including 'burglary.'\" Id. at 578. After reviewing the alternatives, the Supreme Court concluded that \"a person has been convicted of burglary for purposes of a 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.\" Id. at 599. The Court then addressed \"the problem of applying this conclusion to cases in which the state statute under which a defendant is convicted varies from the generic definition of 'burglary.'\" Id. The Court held that 924(e) \"mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.\" Id. at 600. The Court's logic was threefold:\n \n \n 35\n First, the language of 924(e) generally supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions. . . .\n \n \n 36\n Second, . . . the legislative history of the enhancement statute shows that Congress generally took a categorical approach to predicate offenses. . . . If Congress had meant to adopt an approach that would require the sentencing court to engage in an elaborate factfinding process regarding the defendant's prior offenses, surely this would have been mentioned somewhere in the legislative history.\n \n \n 37\n Third, the practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant's actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was. . . . Also, in cases where the defendant pleaded guilty, there often is no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.\n \n \n 38\n Id. at 600-02.\n \n \n 39\n Mackovich's Taylor-based argument proceeds along the following lines: Mackovich \"concedes that the government proved by a preponderance that his 1977 conviction of robbery constitutes a serious violent felony for purposes of the Three Strikes statute.\" Appellant's Opening Brief at 10. However, according to Mackovich the \"Taylor categorical approach should apply to the defendant's burden of proving that his offense is a nonqualifying offense.\" Id. at 11. Mackovich contends that (1) the language of 3559(c)(3)(A) does not expressly indicate that Congress intended courts to \"delve into facts,\" and the \"use of a firearm or threat of such use are often considered elements of crimes,\" id. at 13; (2) while the legislative history of 3559(c)(3)(A) \"reflects the requirement that a defendant prove that his actions did not constitute the use or threat of use of a firearm,\" it \"does not reveal how Congress intended such proof to be made,\" id. at 14; and (3) the use of a \"factual approach\" in this case would be unfair because Mackovich pleaded guilty in 1977 to a simple robbery offense (instead of the armed robbery offense with which he was originally charged) whose elements did not include the use or threat of use of a dangerous weapon. Id. at 14-15. Mackovich further maintains that the age of his 1977 conviction \"accentuates th[e] practical difficulties and the potential unfairness of a factual approach.\" Id. at 15. We review Mackovich's claims de novo. See Gottlieb, 140 F.3d at 868 (\"This court reviews de novo the district court's imposition of a sentence enhancement pursuant to the Three Strikes statute.\"); see also Oberle, 136 F.3d at 1423 (\"We review questions of statutory construction de novo.\").\n \n \n 40\n The plain language of 3559(c)(3)(A) forecloses Mackovich's position. As we explained in Romero, \"[i]n interpreting a statute, we begin with the plain language of the statute itself. If the terms of the statute are unambiguous, our inquiry ends.\" 122 F.3d at 1337 (citation omitted). Section 3559(c)(3)(A) provides that a prior robbery does not qualify as a \"strike\" if the defendant clearly and convincingly establishes that \"no firearm or other dangerous weapon was used in the offense,\" \"no threat of use of a firearm or other dangerous weapon was involved in the offense,\" and \"the offense did not result in death or serious bodily injury\" to any person. This language unmistakably requires courts to look to the specific facts underlying the prior offense, not to the elements of the statute under which the defendant was convicted. In contrast, 924(e) the statute at issue in Taylor explicitly and implicitly directs courts to examine the elements of a defendant's previous crimes. See 18 U.S.C. 924(e)(2)(B)(i) (stating that the term \"violent felony\" means an offense \"punishable by imprisonment for a term exceeding one year\" that \"has as an element the use, attempted use, or threatened use of physical force against the person of another\"); 18 U.S.C. 924(e)(2)(B)(ii) (stating that the term \"violent felony\" likewise includes burglary, arson, extortion, the use of explosives, and other conduct presenting \"a serious potential risk of physical injury to another\"). As a result, Taylor's categorical approach is inapplicable to the \"nonqualification\" inquiry under 3559(c)(3)(A), and cannot provide a basis for reversal in this case.\n \n \n 41\n Mackovich's final argument is that 3559(c)(3)(A) is unconstitutional. Citing Cooper v. Oklahoma, 517 U.S. 348 (1996) and United States v. Gatewood, 184 F.3d 550 (6th Cir. 1999), vacated for rehearing en banc, No. 98-5138, 1999 WL 1482026, at *1 (6th Cir. Oct. 28, 1999), he contends that the \"clear and convincing\" burden of proof imposed by 3559(c)(3)(A) is inconsistent with the Due Process Clause. Mackovich thus urges that \"his burden was only to show . . . by a preponderance of the evidence that his 1977 conviction was a nonqualifying felony and could not be used as a third strike.\" Appellant's Opening Brief at 17. According to Mackovich, he shouldered this burden by submitting as evidence \"the pertinent Arizona statute and the judgment and commitment order.\" Appellant's Reply Brief at 1. Neither of these documents mentioned the use, threat of use, or involvement of a dangerous weapon.\n \n \n 42\n We need not address Mackovich's due process challenge to 3559(c)(3)(A), because his argument fails on other grounds. As the district court recognized, Mackovich did not muster \"even a preponderance of the evidence that he did not use a weapon\" in the commission of the 1977 robbery. ROA, Vol. VI, at 578. Through the offense reports and other documents, the government conclusively established that Mackovich used or threatened to use a dangerous weapon. Consequently, even if we assume that the burden of proof under 3559(c)(3)(A) should be a preponderance, Mackovich's proffered evidence failed to satisfy that standard a point Mackovich acknowledges in his appellate brief. See Appellant's Reply Brief at 5 (\"If this court finds that the categorical approach of Taylor does not apply to the defendant's burden of proving his prior serious violent felony is a nonqualifying felony, then of course, Mackovich did not meet his burden.\"). Indeed, Mackovich's argument fails even if we assume that the proper interpretation of 3559(c)(3)(A) requires the government to prove by a preponderance of the evidence that a dangerous weapon was involved in a prior offense. For that reason, we affirm the district court while reserving judgment on the constitutionality of the \"clear and convincing evidence\" provision of 3559(c)(3)(A). See United States v. Smith, 208 F.3d 1187, 1190 (10th Cir. 2000) (avoiding a challenge to the \"clear and convincing evidence\" provision of 3559(c)(3)(A) because, \"[u]nder any standard of proof, defendant [could not] establish that he [wa]s exempt from the three strikes enhancement\"); United States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999) (same); cf. Gottlieb, 140 F.3d at 873 n.11 (declining to decide whether the \"clear and convincing evidence\" provision violates the Due Process Clause because the defendant \"satisfied this heightened standard\").\n \n \n 43\n AFFIRMED.\n \n \n \n Notes:\n \n \n 1\n Similar disruptions occurred at other times during the hearing. The government acknowledged Mackovich's outbursts in a motion in limine seeking \"an order admonishing the Defendant not to engage in inappropriate and disruptive behavior during jury selection and trial . . . .\" SROA, Vol. I, Doc. 53, at 1.\n \n \n 2\n See also Joyner v. Borough of Brooklyn, No. 98 CV 2579 (RJD), 1999 WL 294780, at *1, *2 (E.D.N.Y. Mar. 18, 1999) (holding that \"[t]he yellow fringe trim on the American flag has no effect on a court's jurisdiction or a defendant's constitutional or statutory rights\"); Cass v. Richard Joshua Reynolds Tobacco Co., No. 1:97CV01236, 1998 WL 834856, at *2 (M.D.N.C. Oct. 1, 1998) (rejecting the \"phantasmal\" claim that flags adorned with fringe are \"instrumentalities of a foreign sovereign\" and noting that \"[f]ringed flagged jurisprudence flourishes, though frequently found frivolous\"); United States v. Warren, No. 91-CR-226, 1998 WL 26406, at *1-*2 (N.D.N.Y. Jan. 22, 1998) (restating the plaintiff's position that a \"foreign yellow fringe flag\" is illegal and concluding that \"one could rightly call\" such an argument \"gibberish\"); Sadlier v. Payne, 974 F. Supp. 1411, 1415-16 (D. Utah 1997) (repudiating a plaintiff's claim that \"yellow fringe on the flag somehow converted the jurisdiction of the state court into a 'foreign state/power'\"); Schneider v. Schlaefer, 975 F. Supp. 1160, 1161-64 & n.1 (E.D. Wis. 1997) (noting a plaintiff's attempt to invoke \"Army Regulation 840-10\" and stating that \"flag fringe\" jargon is \"regrettably familiar to . . . federal courts around the country\"); McCann v. Greenway, 952 F. Supp. 647, 649-51 (W.D. Mo. 1997) (discussing army regulations and holding that \"[e]ven if the Army or Navy do display United States flags surrounded by yellow fringe, the presence of yellow fringe does not necessarily turn every such flag into a flag of war\"); United States v. Greenstreet, 912 F. Supp. 224, 229 (N.D. Tex. 1996) (recognizing that a number of litigants have \"attempted to persuade the judiciary that fringe on an American flag denotes a court of admiralty\" and thereby limits federal jurisdiction); United States v. Schiefen, 926 F. Supp. 877, 884 (D.S.D. 1995) (concluding that \"[f]ederal jurisdiction is determined by statute, not by whether the flag flown is plain or fringed\"); Vella v. McCammon, 671 F. Supp. 1128, 1129 (S.D. Tex. 1987) (rebuffing as \"totally frivolous\" the argument that a court lacks jurisdiction because \"[a] flag has yellow fringes on it\").\n \n \n 3\n In addition, Mackovich asserted in open court prior to trial that he had been a \"licensed counselor,\" a member of the Roswell Job Corps, and an employee at a hospital associated with \"psychology education services.\" ROA, Vol. II, at 13. Mackovich stated that he was \"quite competent,\" and opined that: \"It's been my attorney's ploy to find me incompetent, Your Honor. I have never at any time given any psychiatrist or attorneys reason to believe I was incompetent. And it's just a matter that they are afraid of dealing with this case and investigating it and doing the leg work.\" Id.\n \n \n 4\n Although Mackovich represented to the court that his counsel was not prepared for trial, his counsel stated on the record that he was prepared.\n \n \n 5\n Mackovich's pro se motion for substitution of counsel clearly indicated an interest in self-representation. However, that motion was never officially filed and there is no indication in the record that it was available to the district court when it issued its November 24, 1998 order. Even assuming, arguendo, the motion was available to and reviewed by the district court at some point prior to trial, that does not alter our conclusion that the district court was correct in finding that Mackovich's motive for requesting self-representation was to delay the trial.\n \n \n ", "ocr": false, "opinion_id": 768421 } ]

[ "795 P.2d 401", "247 Kan. 223" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4469, "opinion_text": "\n247 Kan. 223 (1990)\n795 P.2d 401\nSTATE OF KANSAS, Appellee,\nv.\nRICHARD CRAWFORD, Appellant.\nNo. 63,250\nSupreme Court of Kansas.\nOpinion filed July 19, 1990.\nLucille Marino, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.\nTerra D. Morehead, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, and Nick A. Tomasic, district attorney, were with her on the brief for appellee.\nThe opinion of the court was delivered by\nHERD, J.:\nThis is a criminal action wherein Richard Crawford directly appeals his jury convictions of aggravated burglary, K.S.A. 21-3716; rape, K.S.A. 21-3502; and aggravated criminal sodomy, K.S.A. 21-3506. Crawford was sentenced to five to twenty years' imprisonment for the commission of aggravated burglary and to terms of ten to twenty years for each of the rape and aggravated criminal sodomy convictions. The sentences run concurrently. Crawford's motion to modify the sentences to probation was denied.\n*224 The facts are in dispute and we therefore set them out in some detail.\nOn the evening of July 25, 1986, fourteen-year-old C.H. babysat for her aunt and uncle, Dorothy and Sylvester. C.H. testified at trial that a man knocked on the door around 10:30 p.m. asking for Dorothy and Sylvester. C.H. told him they were not home and the man left. The man, later identified as Crawford, returned a short while later and again asked for Dorothy and Sylvester. Crawford told C.H. that Sylvester was coming up the street and, when C.H. opened the door slightly to look, Crawford pushed his way into the house. C.H. called her grandmother but before she could speak Crawford hung up the telephone. Eventually a struggle ensued between C.H. and Crawford. C.H. testified that she bit Crawford when he put his arm around her and that Crawford threatened to get a knife. At that point, Crawford ripped off C.H.'s clothing, took off his own, and raped C.H.C.H. testified Crawford then hit her, ordered her not to scream, and \"put his mouth down between my legs.\" C.H. testified that Sylvester walked in at that point and Crawford told Sylvester that C.H. had invited him to the house earlier. C.H. called the police, and Crawford was arrested on the scene.\nCrawford had a different version of the events which he testified to. He claims C.H. said she would like some company when he knocked on the door seeking Dorothy and Sylvester. After leaving to speak with a friend, Crawford returned to the house and C.H. opened the door and invited him in. Crawford told C.H. he had returned to make love to her, and C.H. disrobed. Crawford denied that he and C.H. had sexual intercourse, but stated that while he was kissing C.H.'s breasts and stomach Sylvester arrived home. Until that point, Crawford believed C.H. was 21 years old. Sylvester informed him, however, that C.H. was only 14. Crawford did not want Sylvester to think poorly of C.H. and therefore told Sylvester that C.H. had seen him earlier and \"invited him over.\" Crawford denied the performance of cunnilingus.\nAn emergency physician who examined C.H. testified that C.H. told him she was raped and, in his words, cunnilingus was performed. The results of a vaginal examination were consistent with the history given by C.H. A police officer who transported *225 Crawford to the police station stated that Crawford told him about performing cunnilingus on C.H.\nCrawford first contends the trial court erred in its instruction on aggravated criminal sodomy because it failed to require the jury to find penetration and that there was insufficient evidence to sustain a conviction of aggravated criminal sodomy.\nWhen charging a jury in a criminal case, it is the trial court's duty to define the offense charged, either in the language of the statute or in appropriate and accurate language of the court. State v. Lashley, 233 Kan. 620, 629, 664 P.2d 1358 (1983).\nK.S.A. 21-3506 provides in part: \"Aggravated criminal sodomy is: (a) Sodomy with a child who is not married to the offender and who is under 16 years of age.\"\nSodomy is defined, in part, as \"oral or anal copulation.... Any penetration, however slight, is sufficient to constitute sodomy.\" K.S.A. 21-3501(2).\nThe district court instructed the jury as follows:\n\"The defendant is charged with the crime of aggravated criminal sodomy. The defendant pleads not guilty.\n\"To establish this charge each of the following claims must be proved:\n\"1. That the defendant had oral sexual relations with [C.H.];\n\"2. That [C.H.] was a child who was not married to the defendant and who was under sixteen years of age; and\n\"3. That this act occurred on or about the 25th day of July, 1986, in Wyandotte County, Kansas.\"\nCrawford asserts the instruction given was erroneous because it failed to set forth the essential element that penetration occurred. The State responds that, although the instruction on aggravated criminal sodomy was erroneous, it was not fatal because Crawford made no contemporaneous objection thereto. When an instruction is not objected to at trial, this court's scope of review is limited to a determination of whether the instruction was clearly erroneous. State v. Maxwell, 234 Kan. 393, 399, 672 P.2d 590 (1983); State v. James, 217 Kan. 96, 100, 535 P.2d 991 (1975).\nBoth arguments are without merit because Crawford was incorrectly charged with aggravated criminal sodomy. Recently, in State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), we determined that cunnilingus, sexual activity with the tongue and the female sex organ, was not an act of sodomy. 245 Kan. at 644. *226 We ruled in Moppin that cunnilingus did not constitute \"oral copulation,\" an essential element of sodomy as it was charged. 245 Kan. at 643. Syllabus ¶ 1 stated: \"Oral-genital stimulation between the tongue of a male and the genital area of a female, commonly known as cunnilingus, is not included in the definition of `sodomy' found at K.S.A. 21-3501(2)....\" Moppin holds that cunnilingus is not sodomy under Kansas statutes regardless of penetration.\nThe dissent attempts to rewrite Moppin making penetration the missing element causing us to find the offense charged was not sodomy. As illustrated above the decision did not turn on penetration, it turned on the definition of oral copulation which does not include cunnilingus. Even though this writer was the sole dissenter in Moppin, he believes it proper appellate procedure to accept statutory interpretation by this court as the law of the state and await legislative action, which has occurred. See L. 1990, ch. 149, § 14(2). This action was prosecuted under the prior statute.\nSimilar to Moppin, Crawford was improperly charged and there was insufficient evidence to establish oral copulation. The State more properly should have charged Crawford with indecent liberties with a child. We conclude Crawford's conviction for aggravated criminal sodomy must be reversed.\nCrawford next contends the trial court erred in failing to instruct the jury on attempted rape.\nPursuant to K.S.A. 21-3107, the trial court has an affirmative duty to instruct on all lesser included offenses required by the evidence even when such instruction is not requested. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The trial court's duty arises, however, only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. State v. Royal, 234 Kan. 218, 221, 670 P.2d 1337 (1983). Attempted rape is a lesser included offense of rape. K.S.A. 21-3107(2)(b).\nIn the present case, C.H. testified that Crawford had sexual intercourse with her without her consent. The examining physician testified a vaginal examination revealed a slight tear at the opening of the vagina and an irritation to the cervix. The physician testified that such evidence was consistent with C.H.'s claim of *227 sexual assault. Crawford testified that some sexual contact occurred, but that he did not have sexual intercourse with C.H.\nIn State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985), with facts similar to the case at hand, the defendant denied having had sexual intercourse with the victim, but admitted some consensual sexual contact had occurred. The defendant argued the trial court erred in failing to instruct the jury on attempted rape. We stated the evidence showed the victim was either raped or there was consensual sexual contact; thus, there was no evidence of an attempted rape and no error in not giving the instruction.\nThe same rule applies in the present case. C.H.'s testimony and the testimony of the examining physician indicate rape. If the jury believed Crawford's testimony, it would find some sexual contact but no forcible rape. No evidence was presented upon which Crawford might reasonably have been convicted of attempted rape. We find no error in not giving the instruction.\nCrawford's final argument is that the instruction given on aggravated burglary was erroneous because it omitted the essential element that a human being was inside the house. Crawford argues the jury could have found only the elements of a simple burglary and therefore his conviction for aggravated burglary should be set aside.\nK.S.A. 21-3716 defines aggravated burglary, in pertinent part, as the knowing and unauthorized entry into a building in which there is some human being, with the intent to commit a felony therein. Simple burglary is defined in the same manner but does not require the presence of a human being inside the building. K.S.A. 21-3715.\nAs we stated above, however, Crawford's failure to object to the instruction at trial limits our scope of review to a determination of whether the instruction was clearly erroneous. State v. Maxwell, 234 Kan. at 399. An instruction is clearly erroneous when the appellate court is firmly convinced there is a real possibility the jury would have returned a different verdict if the district court had not erred. State v. Clements, 241 Kan. 77, 81, 734 P.2d 1096 (1987); State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977). The trial court has a duty to inform the jury of every essential element of a crime charged. State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988); State v. Houck, *228 240 Kan. 130, 138, 727 P.2d 460 (1986). The trial court's instruction on aggravated burglary, omitting an essential element, was clearly erroneous. Cole v. Young, 817 F.2d 412, 423 (7th Cir.1987); United States v. Hiscott, 586 F.2d 1271, 1275 (8th Cir.1978).\nThe presence of a human being within the building burglarized is the only distinction between aggravated burglary and the lesser crime of simple burglary. Thus, omission of this essential element in the instructions provided to the jury was clearly erroneous as the jury could find no more than simple burglary.\nThe appellant's convictions of aggravated criminal sodomy and aggravated burglary are reversed. The appellant's conviction of rape is affirmed.\nLOCKETT, J., concurring and dissenting:\nI respectfully dissent from the majority's expansion of the finding in State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), that oral-genital stimulation by the tongue of the male, without penetration, of the female external sex organ is not included in the definition of sodomy found in K.S.A. 21-3501(2).\nThe elements of sodomy and ways that the crime of sodomy may be committed have varied with the terms used by the legislature in defining the offense. Sodomy was originally defined as \"a crime against nature.\" G.S. 1868, ch. 31, § 231 stated, \"Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, shall be punished by confinement and hard labor not exceeding ten years.\" In 1969 the legislature expanded \"the crime against nature\" by enacting the offense of sodomy. K.S.A. 21-3505 (Weeks). The offense of sodomy was defined as \"oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal.\" In 1983 the legislature again expanded the crime of sodomy. K.S.A. 21-3501(2) states:\n\"`Sodomy' means oral or anal copulation; oral or anal copulation or sexual intercourse between a person and an animal; or any penetration of the anal opening by any body part or object. Any penetration, however slight, is sufficient to constitute sodomy.\"\n*229 Aggravated criminal sodomy is sodomy with a child who is not married to the offender and is under the age of 16 years. K.S.A. 21-3506.\nIn Moppin, the defendant claimed (1) that the State failed to prove penetration, and (2) it failed to prove oral copulation. After reviewing the trial record, we found that there was no evidence that the defendant had inserted his tongue into the child's sex organ, i.e., no penetration, no crime of sodomy.\nThe court then entered into a scholarly discussion of whether cunnilingus is sodomy. The court discovered:\n\"Taber's Cyclopedic Medical Dictionary 1701 (1989), defines `sodomy' as `[a]nal intercourse, usually between males.' Black's Law Dictionary 1563 (4th ed. 1968), defines `sodomy' as `[a] carnal copulation by human beings with each other against nature, or with a beast.' The entry further explains that, although strictly speaking sodomy means anal penetration between two males, it has been extended to include anal penetration of a woman or copulation with an animal. It has also been extended to mean penetration of the mouth by the penis. Webster's Third New International Dictionary 2165 (1976) defines sodomy as `carnal copulation with a member of the same sex or with an animal; nonconsensual copulation with a member of the opposite sex; specif: the penetration of the male sex organ into the mouth or anus of another.'\n\"As stated, K.S.A. 21-3501 defines sodomy in pertinent part as `oral or anal copulation.' Taber's defines copulation as `sexual intercourse,' as does Webster's New Collegiate Dictionary.\" 245 Kan. at 643.\nThe court \"concluded that cunnilingus is not an act of `sodomy' as the term is defined by statute, ... and that there was insufficient evidence to establish oral copulation.\" [Emphasis added.] Moppin, 245 Kan. at 644. Therefore, Moppin determined that cunnilingus was not sodomy, then recognized that the legislature had enlarged the crime of sodomy to include \"oral copulation,\" but without proof of penetration of the female sex organ by the tongue, there was insufficient evidence to convict Moppin of that offense.\nIt has been determined that the \"crime against nature,\" as contemplated by a statute relating to sex perversion, is the perverted act of uniting the mouth of one participant with the sexual organ of the other, with a view of gratifying sexual desire, and a mere kiss or lick of the private organ, even though lewdly done, is not a \"copulation\" within the statute. Cal. Penal Code § 288a *230 (West 1988). The word \"copulate has had primarily an unvarying significance, to wit, the act of gratifying sexual desire by the union of the sexual organs of two biological entities.\" People v. Angier, 44 Cal. App. 2d 417, 419, 112 P.2d 659 (1941).\nOur legislature intended that one of the methods of committing the crime of sodomy was by oral copulation. The word \"copulation\" has never had the meaning of mere contact and has always had the significance of the verb \"to couple,\" which is an English derivative of the Latin \"copulare,\" translated as \"to couple, join, unite, band or tie together.\" The Latin noun \"copula\" is translated as \"that which joins together, as a band, tie or leash.\" The English word \"copulation\" has no other significance than that of uniting in sexual intercourse, and its popular significance is the union of the sexes in the generative act. People v. Angier, 44 Cal. App.2d at 419.\nIn order to commit the crime of oral copulation, the sodomy statute requires that the sex organ of at least one of the parties must be involved. The sex organ may be either the male or female sex organ. Oral copulation — construed as sodomy — includes cunnilingus, if the tongue penetrates the female sex organ, and fellatio, if the male sex organ penetrates the mouth.\nMILLER, C.J., joins the foregoing concurring and dissenting opinion.\n", "ocr": false, "opinion_id": 2606258 }, { "author_str": "Herd", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nHerd, J.:\nThis is a criminal action wherein Richard Crawford directly appeals his jury convictions of aggravated burglary, K.S.A. 21-3716; rape, K.S.A. 21-3502; and aggravated criminal sodomy, K.S.A. 21-3506. Crawford was sentenced to five to twenty years’ imprisonment for the commission of aggravated burglary and to terms of ten to twenty years for each of the rape and aggravated criminal sodomy convictions. The sentences run concurrently. Crawford’s motion to modify the sentences to probation was denied.\n*224The facts are in dispute and we therefore set them out in some detail.\nOn the evening of July 25, 1986, fourteen-year-old C.H. babysat for her aunt and uncle, Dorothy and Sylvester. C.H. testified at trial that a man knocked on the door around 10:30 p.m. asking for Dorothy and Sylvester. C.H. told him they were not home and the man left. The man, later identified as Crawford, returned a short while later and again asked for Dorothy and Sylvester. Crawford told C.H. that Sylvester was coming up the street and, when C.H. opened the door slightly to look, Crawford pushed his way into the house. C.H. called her grandmother but before she could speak Crawford hung up the telephone. Eventually a struggle ensued between C.H. and Crawford. C.H. testified that she bit Crawford when he put his arm around her and that Crawford threatened to get a knife. At that point, Crawford ripped off C.H. ’s clothing, took off his own, and raped C.H. C.H. testified Crawford then hit her, ordered her not to scream, and “put his mouth down between my legs.” C.H. testified that Sylvester walked in at that point and Crawford told Sylvester that C.H. had invited him to the house earlier. C.H. called the police, and Crawford was arrested on the scene.\nCrawford had a different version of the events which he testified to. He claims C.H. said she would like some company when he knocked on the door seeking Dorothy and Sylvester. After leaving to speak with a friend, Crawford returned to the house and C.H. opened the door and invited him in. Crawford told C.H. he had returned to make love to her, and C.H. disrobed. Crawford denied that he and C.H. had sexual intercourse, but stated that while he was kissing C.H.’s breasts and stomach Sylvester arrived home. Until that point, Crawford believed C.H. was .21 years old. Sylvester .informed him, however, that C.H. was only 14. Crawford did not want Sylvester to think poorly of C.H. and therefore, told Sylvester that C.H. had seen.him earlier and “invited him over.” Crawford denied the performance of cunnilingus.\nAn emergency physician who examined C.H. testified that C.H. told him she was raped and, in his words, cunnilingus was performed. The results of a vaginal examination were consistent with the history given by C.H. A police officer who transported *225Crawford to the police station stated that Crawford told him about performing cunnilingus on C.H.\nCrawford first contends the trial court erred in its instruction on aggravated criminal sodomy because it failed to require the jury to find penetration arid that there was insufficient evidence to sustain a conviction of aggravated criminal sodomy.\nWhen charging a júry in a criminal case, it is the trial court’s duty to define the offense charged, either in the language of. the statute or in appropriate and accurate language of the court. State v. Lashley, 233 Kan. 620, 629, 664 P.2d 1358 (1983).\nK.S.A. 21-3506 provides in part: “Aggravated criminal sodomy is: (a) Sodomy with a child who is not married to the offender and who is under 16 years of age.”\nSodomy is defined, in part, as “oral or anal copulation .... Any penetration, however slight, is sufficient to constitute, sodomy.” K.S.A. 21-3501(2).\nThe district court instructed the jury as follows:\n“The defendant is charged with the crime of aggravated criminal sodomy. The defendant pleads not guilty.,\n“To establish this charge each of the following claims must be proved:\n“1. That the defendant had oral sexual relations with [C.H.];\n“2. That [C.H.] was a child who was not married to the defendant and who was under sixteen years of age; ánd\n“3. That this act occurred on or about the 25th day of July, 1986, in Wyandotte County, Kansas.”\nCrawford asserts the instruction given was erroneous because it failed to set forth the essential element that penetration occurred. Thé State responds that, although the instruction on aggravated criminal sodomy was erroneous, it was not fatal because Crawford made no contemporaneous objection thereto. When an instruction is not objected to at trial, this court’s scope of review is limited to a determination of Whether the instruction Was clearly erroneous. State v. Maxwell, 234 Kan. 393, 399, 672 P.2d 590 (1983); State v. James, 217 Kan. 96, 100, 535 P.2d 991 (1975).\nBoth arguments are without merit because Crawford was incorrectly charged with aggravated criminal sodomy. Recently, in State v. Moppin, 245 Kan. 639, 783 P. 2d 878 (1989), We deter^ mined that cunnilingus, sexual’activity with the tongue and the female sex organ, was not‘an act of’sodoiny. 245 Kan. at 644. *226We ruled in Moppin that cunnilingus did not constitute “oral copulation,” an essential element of sodomy as it was charged. 245 Kan. at 643. Syllabus ¶ 1 stated: “Oral-genital stimulation between the tongue of a male and the genital area of a female, commonly known as cunnilingus, is not included in the definition of‘sodomy’found at K.S.A. 21-3501(2) . . . .” Moppin holds that cunnilingus is not sodomy under Kansas statutes regardless of penetration.\nThe dissent attempts to rewrite Moppin making penetration the missing element causing us to find the offense charged wás not sodomy. As illustrated above the decision did not turn on penetration, it turned on the definition of oral copulation which does not include cunnilingus. Even though this writer was the sole dissenter in Moppin, he believes it proper appellate procedure to accept statutory interpretation by this court as the law of the state and await legislative action, which has occurred. See L. 1990, ch. 149, § 14(2). This action was prosecuted under the prior statute.\nSimilar to Moppin, Crawford was improperly charged and there was insufficient evidence to establish oral copulation. The State more properly should have charged Crawford with indecent liberties with a child. We conclude Crawford’s conviction for aggravated criminal sodomy must be reversed.\nCrawford next contends the trial court erred in failing to instruct the jury on attempted rape.\nPursuant to K.S.A. 21-3107, the trial court has an affirmative duty to instruct on all lesser included offenses required by the evidence even when such instruction is not requested. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The trial court’s duty arises, however, only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. State v. Royal, 234 Kan. 218, 221, 670 P.2d 1337 (1983). Attempted rape is a lesser included offense of rape. K.S.A. 21-3107(2)(b).\nIn the present case, C.H. testified that Crawford had sexual intercourse with her without her consent. The examining physician testified a vaginal examination revealed a slight tear at the opening of the vagina and an irritation to the cervix. The physician testified that such evidence was consistent with C.H.’s claim of *227sexual assault. Crawford testified that some sexual contact occurred, but that he did not have sexual intercourse with C.H.\nIn State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985), with facts similar to the case at hand, the defendant denied having had sexual intercourse with the victim, but admitted some consensual sexual contact had occurred. The defendant argued the trial court erred in failing to instruct the jury on attempted rape. We stated the evidence showed the victim was either raped or there was consensual sexual contact; thus, there was no evidence of an attempted rape and no error in not giving the instruction.\nThe same rule applies in the present case. C.H.’s testimony and the testimony of the examining physician indicate rape. If the jury believed Crawford’s testimony, it would find some sexual contact but no forcible rape. No evidence was presented upon which Crawford might reasonably have been convicted of attempted rape. We find no error in not giving the instruction.\nCrawford’s final argument is that the instruction given on aggravated burglary was erroneous because it omitted the essential element that a human being was inside the house. Crawford argues the jury could have found only the elements of a simple burglary and therefore his conviction for aggravated burglary should be set aside.\nK.S.A. 21-3716 defines aggravated burglary, in pertinent part, as the knowing and unauthorized entry into a building in which there is some human being, with the intent to commit a felony therein. Simple burglary is defined in the same manner but does not require the presence of a human being inside the building. K.S.A. 21-3715.\nAs we stated above, however, Crawford’s failure to object to the instruction at trial limits our scope of review to a determination of whether the instruction was clearly erroneous. State v. Maxwell, 234 Kan. at 399. An instruction is clearly erroneous when the appellate court is firmly convinced there is a real possibility the jury would have returned a different verdict if the district court had not erred. State v. Clements, 241 Kan. 77, 81, 734 P.2d 1096 (1987); State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977). The trial court has a duty to inform the jury of every essential element of a crime charged. State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988); State v. Houck, *228240 Kan. 130, 138, 727 P.2d 460 (1986). The trial court’s instruction on aggravated burglary, omitting an essential element, was clearly erroneous. Cole v. Young, 817 F.2d 412, 423 (7th Cir. 1987); United States v. Hiscott, 586 F.2d 1271, 1275 (8th Cir. 1978).\nThe presence of a human being within the building burglarized is the only distinction between aggravated burglary and the lesser crime of simple burglary. Thus, omission of this essential element in the instructions provided to the jury was clearly erroneous as the jury could find no more than simple burglary.\nThe appellant’s convictions of aggravated criminal sodomy and aggravated burglary are reversed. The appellant’s conviction of rape is affirmed.\n", "ocr": false, "opinion_id": 9790398 }, { "author_str": "Lockett", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLockett, J.,\nconcurring and dissenting: I respectfully dissent from the majority’s expansion of the finding in State v. Moppin, 245 Kan. 639, 783 P.2d 878 (1989), that oral-genital stimulation by the tongue of the male, without penetration, of the female external sex organ is not included in the definition of sodomy found in K.S.A. 21-3501(2).\nThe elements of sodomy and ways that the crime of sodomy may be committed have varied with the terms used by the legislature in defining the offense. Sodomy was originally defined as “a crime against nature.” G.S. 1868, ch. 31, § 231 stated, “Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, shall be punished by confinement and hard labor not exceeding ten years.” In 1969 the legislature expanded “the crime against nature” by enacting the offense of sodomy. K.S.A. 21-3505 (Weeks). The offense of sodomy was defined as “oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal.” In 1983 the legislature again expanded the crime of sodomy. K.S.A. 21-3501(2) states:\n“ ‘Sodomy’ means oral or anal copulation; oral or anal copulation or sexual intercourse between a person and an animal; or any penetration of the anal opening by any body part or object. Any penetration, however slight, is sufficient to constitute sodomy.”\n*229Aggravated criminal sodomy is sodomy with a child who is not married to the offender and is under the age of 16 years. K.S.A. 21-3506.\nIn Moppin, the defendant claimed (1) that the State failed to prove penetration, and (2) it failed to prove oral copulation. After reviewing the trial record, we found that there was no evidence that the defendant had inserted his tongue into the child’s sex organ, i.e., no penetration, no crime of sodomy.\nThe court then entered into a scholarly discussion of whether cunnilingus is sodomy. The court discovered:\n“Taber’s Cyclopedic Medical Dictionary 1701 (1989), defines ‘sodomy’ as ‘[a]nal intercourse, usually between males.’ Black’s Law Dictionary 1563 (4th ed. 1968), defines ‘sodomy’ as ‘[a] carnal copulation by human beings with each other against nature, or with a beast.’ The entry further explains that, although strictly speaking sodomy means anal penetration between two males, it has been extended to include anal penetration of a woman or copulation with an animal. It has also been extended to mean penetration of the mouth by the penis. Webster’s Third New International Dictionary 2165 (1976) defines sodomy as ‘camal copulation with a member of the same sex or with an animal; nonconsensual copulation with a member of the opposite sex; specif: the penetration of the male sex organ into the mouth or anus of another.’\n“As stated, K.S.A. 21-3501 defines sodomy in pertinent part as ‘oral or anal copulation.’ Taber’s defines copulation as ‘sexual intercourse,’ as does Webster’s New Collegiate Dictionary.” 245 Kan. at 643.\nThe court “concluded that cunnilingus is not an act of ‘sodomy’ as the term is defined by statute, . . . and that there was insufficient evidence to establish oral copulation.” [Emphasis added.] Moppin, 245 Kan. at 644. Therefore, Moppin determined that cunnilingus was not sodomy, then recognized that the legislature had enlarged the crime of sodomy to include “oral copulation,” but without proof of penetration of the female sex organ by the tongue, there was insufficient evidence to convict Moppin of that offense.\nIt has been determined that the “crime against nature,” as contemplated by a statute relating to sex perversion, is the perverted act of uniting the mouth of one participant with the sexual organ of the other, with a view of gratifying sexual desire, and a mere kiss or lick of the private organ, even though lewdly done, is not a “copulation” within the statute. Cal. Penal Code § 288a *230(West 1988). The word “copulate has had primarily an unvarying significance, to wit, the act of gratifying sexual desire by the union of the sexual organs of two biological entities.” People v. Angier, 44 Cal. App. 2d 417, 419, 112 P.2d 659 (1941).\nOur legislature intended that one of the methods of committing the crime of sodomy was by oral copulation. The word “copulation” has never had the meaning of mere contact and has always had the significance of the verb “to couple,” which' is an English derivative of the Latin “copulare,” translated as “to couple, join, unite, band or tie together.” The Latin noun “copula” is translated as “that which joins together, as a band, tie or leash.” The English word “copulation” has no other significance than that of uniting in sexual intercourse, and its popular significance is the union of the sexes in the generative act. People v. Angier, 44 Cal. App. 2d at 419.\nIn order to commit the crime of oral copulation, the sodomy statute requires that the sex organ of at least one of the parties must be involved. The sex organ may be either the male or female sex organ. Oral copulation — construed as sodomy — includes cunnilingus, if the tongue penetrates the female sex organ, and fellatio, if the male sex organ penetrates the mouth.\nMiller, C.J., joins the foregoing concurring and dissenting opinion.\n", "ocr": false, "opinion_id": 9790399 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20140428_S148474_38_148474_2014-04-28_or.pdf", "author_id": null, "opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n April 28, 2014 Robert P. Young, Jr.,\n Chief Justice\n\n 148474 Michael F. Cavanagh\n Stephen J. Markman\n Mary Beth Kelly\n Brian K. Zahra\n Bridget M. McCormack\n PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,\n Plaintiff-Appellee, Justices\n\n v SC: 148474\n COA: 312382\n Berrien CC: 2012-000626-FC\n JOSE OVIDIO ESCOBAR,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the December 12, 2013\n judgment of the Court of Appeals is considered, and it is DENIED, because we are not\n persuaded that the questions presented should be reviewed by this Court.\n\n\n\n\n I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n April 28, 2014\n t0421\n Clerk\n\f", "ocr": false, "opinion_id": 2710624 } ]

[ "841 F.2d 90" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/841/841.F2d.90.86-1573.86-1572.html", "author_id": null, "opinion_text": "841 F.2d 90\n 27 ERC 1318, 18 Envtl. L. Rep. 20,831\n The POTOMAC ELECTRIC POWER COMPANY, Plaintiff-Appellant,v.Stephen H. SACHS, in his capacity as Attorney General ofMaryland; Adele Wilzack, in her capacity asSecretary of the Maryland Department ofHealth and Mental Hygiene,Defendants-Appellees,State of New York, et al., Amici Curiae,The POTOMAC ELECTRIC POWER COMPANY, Plaintiff-Appellee,v.Stephen H. SACHS, in his capacity as Attorney General ofMaryland; Adele Wilzack, in her capacity asSecretary of the Maryland Department ofHealth and Mental Hygiene,Defendants-Appellants.State of New York, et al., Amici Curiae,\n Nos. 86-1572, 86-1573.\n United States Court of Appeals,Fourth Circuit.\n March 7, 1988.\n \n Arnold M. Weiner (Michael Schatzow, Ethan L. Bauman, Melnicove, Kaufman, Weiner & Smouse, Baltimore, Md., on brief), E. Barrett Prettyman, Jr. (Sherwin J. Markman, John C. Keeney, Jr., David J. Hayes, Hogan & Hartson, Kathleen B. DeWeese, Washington, D.C., Associate General Counsel, Potomac Elec. Power Co., on brief) for appellant/cross appellee.\n Ralph S. Tyler, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Richard M. Hall, Michael C. Powell, Kathie A. Stein, Charles R. Taylor, Jr., Asst. Attys. Gen., Baltimore, Md., on brief) for appellees/cross appellants.\n Karen L. Florini, U.S. Dept. of Justice (F. Henry Habicht, II, Asst. Atty. Gen., Jacques B. Gelin, Margaret A. Hill, U.S. Dept. of Justice, Francis S. Blake, General Counsel, Bruce M. Diamond, Regional Counsel, Terrell Hunt, Associate Enforcement Counsel, Alan H. Carpien, E.P.A., Washington, D.C., on brief) for amicus curiae U.S.\n Robert Abrams, Atty. Gen. of the State of N.Y., Lawrence A. Rappoport, Associate Atty., Nancy Stearns, Asst. Atty. Gen., New York City, John K. Van de Kamp, Atty. Gen. of State of Cal., Theodora Berger, Asst. Atty. Gen., Los Angeles, Cal., Timothy R. Patterson, Deputy Atty. Gen., San Diego, Cal., Charles A. Graddick, Atty. Gen. of the State of Ala., Craig Kneisel, Asst. Atty. Gen., Montgomery, Ala., Joseph I. Lieberman, Atty. Gen. of the State of Conn., Kenneth Tedford, Asst. Atty. Gen., Hartford, Conn., on brief, for amici curiae State of N.Y., et al.\n Ann Powers, Vice President and General Counsel, Catherine A. Cotter, Washington, D.C., on brief, for amicus curiae Chesapeake Bay Foundation, Inc.\n Jacqueline M. Warren, Donald S. Strait, Lawanda Still, Legal Asst., New York City, on brief, for amicus curiae Natural Resources Defense Council, Inc.\n William L. Kovacs, Henry W. Killeen, III, Donald S. Stefanski, Jaeckle, Fleischmann & Mugel, Buffalo, N.Y., Joseph F. Cleary, Asst. Secretary and Gen. Atty., Syracuse, N.Y., Niagara Mohawk Power Corp., on brief, for amicus curiae Niagara Mohawk Power Corp.\n J. Thomas Wolfe, Lynne H. Church, on brief, for amicus curiae Baltimore Gas and Elec. Co.\n Toni K. Allen, Mary F. Edgar, Piper & Marbury, Washington, D.C., on brief, for amici curiae Edison Elec. Institute, et al.\n Before PHILLIPS, SPROUSE and CHAPMAN, Circuit Judges.\n SPROUSE, Circuit Judge:\n \n \n 1\n On January 19, 1988, the Supreme Court, --- U.S. ----, 108 S.Ct. 743, 98 L.Ed.2d 756 granted the Potomac Electric Power Company's (PEPCO) petition for certiorari in this cause, vacated our earlier judgment, Potomac Electric Power Co. v. Sachs, 802 F.2d 1527 (4th Cir.1986), and remanded \"for further consideration in light of Deakins v. Monaghan, --- U.S. ----, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) ], and to consider the question of mootness.\" Both parties have since filed supplemental memoranda with this court agreeing that the case is moot. We have reviewed the parties' contentions in light of subsequent developments in the case, and now agree with their position that there is no longer a controversy.\n \n \n 2\n After the State of Maryland initiated grand jury proceedings to investigate whether PEPCO had violated Maryland's criminal laws and regulations governing hazardous waste disposal, PEPCO commenced the instant action in federal court seeking a declaratory judgment that the involved state laws were preempted by the Toxic Substances Control Act, 15 U.S.C. Sec. 2601, et seq. The district court determined that TSCA does not preempt the challenged state laws. We reversed concluding that the court should have abstained from deciding the issue under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny. Sachs, 802 F.2d 1527 (4th Cir.1986). While PEPCO's petition for certiorari to the Supreme Court was pending, the State informed the Court that it had suspended its criminal investigation of PEPCO and, therefore, no remaining case or controversy existed between the parties. PEPCO subsequently concurred in the State's position.\n \n \n 3\n In light of the parties' agreement and the absence of an enforcement action against PEPCO, we now agree that the case has become moot. Therefore, in accordance with the Supreme Court's instructions, we remand the case to the district court with directions to dismiss the cause as moot. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).\n \n \n 4\n SO ORDERED.\n \n ", "ocr": false, "opinion_id": 502501 } ]

[ "1 U.S. 354", "1 Dall. 354" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n1 U.S. 354 (1788)\n1 Dall. 354\nROSS\nversus\nCLARKE.\nSupreme Court of United States.\n\n*355 BY THE COURT. — The money is to be considered in the same state, as if it had been paid into the hands of the Sheriff. If a proceeding of this kind were allowed, there could be no end to suits. We are unanimously of opinion, that the foreign attachment has issued irregularly and ought to be quashed.\nThe rule made absolute.\n", "ocr": false, "opinion_id": 2381683 } ]

[ "590 So. 2d 1199" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4577, "opinion_text": "\n590 So.2d 1199 (1992)\nSTATE of Louisiana\nv.\nJohn Daniel CORLEY.\nNo. 91-K-2512.\nSupreme Court of Louisiana.\nJanuary 10, 1992.\nDenied.\nHALL, J., would grant the writ.\n", "ocr": false, "opinion_id": 1099510 } ]

[ "10 So. 3d 635" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n10 So.3d 635 (2009)\nKING\nv.\nSTATE.\nNo. 1D08-6361.\nDistrict Court of Appeal of Florida, First District.\nJune 1, 2009.\nDecision without published opinion Affirmed.\n", "ocr": false, "opinion_id": 1567737 } ]

[ "244 Cal. App. 2d 872" ]

[ { "author_str": "Frampton", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n244 Cal.App.2d 872 (1966)\nLUCKY AUTO SUPPLY, Plaintiff and Appellant,\nv.\nJUSTIN G. TURNER et al., Defendants and Appellants.\nCiv. No. 28638. \nCalifornia Court of Appeals. Second Dist., Div. Three. \nSept. 16, 1966.\n Joseph M. Wapner for Defendants and Appellants.\n Gralla & Gralla and Henry O. Wackerbarth for Plaintiff and Appellant.\n FRAMPTON, J. pro tem. [fn. *]\n Appeal by the defendants and cross-appeal by plaintiff from a judgment for damages for violation of a right under a written license agreement to occupy real property.\n Plaintiff, a California corporation, for more than 20 years last past, has been engaged in the business of selling automobile supplies, accessories and other merchandise some of which is heavy, and some of which is bulky such as automobile engines, tires, batteries, bicycles and large toy wagons. It operates 24 stores at different locations in southern and central California.\n On April 27, 1954, the defendants Maurice Turner and Justin Turner were the trustees of the C & S Kaplan trust; the defendants Charles H. Kaplan and Maurice Turner were the trustees of the Paul and Barbara Turner trust, and the defendants Charles H. Kaplan and Justin G. Turner were the trustees of the R & O Turner trust. These trusts each owned *876 an undivided one-third interest in lots 16, 17, 18 and 19 of block 45, tract 5609 in the City of Los Angeles.\n Lots 17, 18 and 19 were improved with a one-story building divided into four separate storerooms and situated on the northwest corner of Pico Boulevard and Westwood Boulevard. The stores fronted on Pico Boulevard. The building was occupied by four tenants including the plaintiff. The corner storeroom had a width of approximately 25 feet and the storeroom occupied by the plaintiff had a width of approximately 40 feet and adjoined the corner storeroom immediately to the west thereof.\n On April 27, 1954, the then owners of the property leased to the plaintiff the 40-foot storeroom described in the lease as follows: \"That certain store premises in the building at the northwest corner of Pico Boulevard and Westwood Boulevard, Los Angeles, California, adjoining the 25-foot corner store, which premises have a frontage of approximately 40 feet on Pico Boulevard,\" for the term of 10 years commencing July 1, 1954, at a rental of 3 percent of the gross receipts with a minimum rental of $400 per month for the operation of a store for the sale of automobile supplies, accessories, and similar merchandise sold in automobile accessory stores then operated by the plaintiff.\n The lease further provided in paragraph 28 thereof, as follows: \"It is specifically agreed between the parties hereto that the parking lot having a frontage of approximately 50 feet on Westwood Boulevard and being across the alley from the rear of the building, of which the demised premises are a part, is owned by the Lessor and that said parking lot shall be available for the use of the Lessee and the other tenants in the building as a parking lot for the customers of the various tenants in said building.\"\n After the execution of the lease the plaintiff took possession of the storeroom and operated its business upon and from the premises until the time of the trial. The parking lot above referred to was available to and was used by the plaintiff and the plaintiff's customers until September 1, 1958.\n At the time of the execution of the lease and at the time the plaintiff entered into the occupancy of the demised premises, the store building situated upon lots 17, 18 and 19 was bounded on the north by an alley which ran from Westwood Boulevard to the next street westerly thereof, and the parking lot (lot 16) described in the lease was situated immediately north of the alley. The parking lot had a width of approximately *877 56 feet along the west side of Westwood Boulevard and a depth westerly therefrom of 135 feet.\n The plaintiff maintained a service and installation department in the rear portion of the storeroom. This department and the rear entrance to the storeroom were located directly across the alley from the parking lot. Above the rear entrance the plaintiff had installed and maintained a sign reading \"Lucky Auto Supply Service Entrance,\" and electric lights were installed immediately above this sign to illuminate it at night. The sign was visible to persons parking on the parking lot and to pedestrians and automobile traffic proceeding along Westwood Boulevard up until the time that the defendants constructed a building on the parking lot, but was not visible as above indicated thereafter.\n The parking lot was accessible by pedestrian and automobile traffic from the alley and the customers of the plaintiff would park on the parking lot directly across from the service and installation department and the rear entrance to the store, as well as upon the whole of the parking lot; would visit the plaintiff's store through the rear entrance and service department, and would purchase various items of merchandise. There were 25 stalls for automobile parking on the parking lot prior to the construction of the building thereon.\n The employees of the plaintiff were able to observe the customers' automobiles which were parked directly across the alley from the service entrance for the purpose of identifying the parts needed for the various automobiles in accordance with the type, year and model of the automobile, without being required to leave the service entrance or the store premises. The employees, together with the customers of the plaintiff who had purchased heavy or bulky types of merchandise, were able to carry the same across the alley to their parked cars on the parking lot. The parking lot was strategically located for the convenience of the plaintiff and its customers and was necessary for a more profitable operation of its business.\n Prior to the construction of the building on the parking lot by the defendants, there was a sign erected on the southeasterly corner of the parking lot, facing Westwood Boulevard, with the plaintiff's name displayed thereon and notifying plaintiff's customers that the parking lot was available for their use.\n During the time that the plaintiff conducted its business upon the demised premises, both Pico Boulevard and Westwood *878 Boulevard were main business thoroughfares and the parking of automobiles on Pico Boulevard was restricted during normal business hours on all days except Sunday, and automobile parking on Westwood Boulevard was restricted to one hour from 9 a.m. until 4:15 p.m. and no parking was permitted thereon from 7 a.m. until 9 a.m. or from 4:15 p.m. until 6 p.m., and because of such restricted parking the plaintiff's customers were unable to park their automobiles on Pico Boulevard or Westwood Boulevard in front of or near the plaintiff's store during all normal business hours. This made the use of the parking lot by the plaintiff and the plaintiff's customers an important adjunct to the conduct of the plaintiff's business.\n During the month of July 1955, the defendants requested permission from the plaintiff to construct a building on the parking lot and the plaintiff refused to grant such permission. On September 1, 1958, the defendants erected barricades and a fence around the boundary line of the parking lot, deposited building material on the lot and proceeded to construct a building thereon. During the construction of the building there was not sufficient space on the parking lot to park four automobiles. Since September 1, 1958, the plaintiff has not had the use of the parking lot either for itself or for its customers. Other parking facilities were furnished by the defendants after the erection of the building. These parking facilities were to be used by 13 tenants of the defendants and were not the parking facilities described in the plaintiff's lease.\n Subsequent to April 27, 1954, and before September 1, 1958, certain of the original owners of the property here involved sold their interest therein and the purchasers of such interests were duly substituted in as defendants below.\n The case went to trial upon the first, second and sixth counts of the second amended complaint. The first count sets forth generally the plaintiff's occupancy of the demised premises under the terms of the lease and of the plaintiff's right to the use of the parking lot; that without the consent of the plaintiff the defendants did wilfully and intentionally enter and trespass upon the parking lot by, amongst other things, constructing a building thereon. It is further alleged that by reason of the conduct of the defendants in wilfully and wrongfully taking possession of the parking lot and depriving the plaintiff and its customers of the use thereof the plaintiff has suffered damages and loss of business profits and good will in the sum of $25,000. The second count incorporated substantially *879 all of the allegations contained in the first count; alleges the right of the plaintiff and its customers to the use of the parking lot under paragraph 28 of the lease; that the defendants wrongfully took possession of the lot and caused a building to be constructed thereon thus depriving the plaintiff and its customers of their right. The plaintiff seeks damages under this count for the deprivation of the use of the property since September 1958 in the sum of $17,000 plus $500 per month until the premises are restored or the lease expires. The sixth count seeks reasonable attorneys' fees allowable under the provisions of the lease.\n The court rendered judgment for the plaintiff and against the defendants in the sum of $100 per month for loss of profits and good will from September 1, 1958, to June 30, 1964, the date of termination of the lease, in the total sum of $7,000. The court also awarded the sum of $500 as exemplary damages and $2,500 as reasonable attorneys' fees.\n The defendants attack the judgment upon the following grounds:\n \"1. Respondent was not entitled to damages, either actual or punitive, and as a corollary therefrom, the Finding XVIII is not supported by the evidence.\"\n Finding XVIII is as follows: \"The court further finds that as a proximate result of defendants' trespass upon the parking lot, the eviction and deprivation of plaintiff's use thereof, plaintiff suffered and will continue to suffer damages in loss of profits and good will in the amount of $100.00 per month from September 1, 1958, to June 30, 1964, the date of the termination of the lease.\"\n \"2. The award of fees to counsel for respondent was excessive by reason of the fact that the bulk of the work was in connection with the injunction action, and (a) Appellants were entitled to fees for their counsel as they were successful in three of the six causes of action.\"\n \"3. The court erred in admission of evidence concerning income of alleged 'comparable stores.' \"\n The plaintiff attacks the judgment upon the following grounds: 1. It \"is entitled to damages for loss of profits and good will and, also, for the depreciation in the value of the leasehold.\"\n \"2. The trial court erred in sustaining appellants' demurrer to the third cause of action of respondent's second amended complaint.\" *880\n The defendants' assertion that the plaintiff was not entitled to recover any damages is predicated upon the fact that after the construction of the building upon the parking lot area the profit and loss statements of the plaintiff disclosed that it had made some profit from the operation of its business notwithstanding the fact that it and its customers had been deprived of the use of the parking lot facilities. The plaintiff contends that had the facilities of the parking lot remained available to it and its customers it would have made a greater profit than was shown on its financial statements.\n To sustain the plaintiff's claim of loss of profits it introduced evidence to show that the sales of the Pico store (the store involved under the lease) did not increase at the same average rate as did the sales of five of its comparable stores after the defendants had deprived the plaintiff and its customers of the use of the parking lot facilities.\n In this connection one Maurice Getz testified that he was the secretary and vice president of the plaintiff and had been an officer of the corporation for about 26 years; that the account books and records were kept under his supervision and that he was familiar therewith; that the books and records of each store are kept in the same manner; that in his opinion it was necessary for the parking lot to be located adjacent to the service entrance to the Pico store for the profitable operation of the business. He testified further that he had knowledge of the operation of the 24 stores conducted by the plaintiff and that stores numbers 1, 7, 11, 14 and 16 were comparable to the Pico store; that these five stores were similar in size, parking facilities and type of residential neighborhood; that surrounding business districts were growing in a similar manner and there were similar social, economic and racial groups in the surrounding areas; that the sales of these five comparable stores were added together and compared with those of the Pico store. He testified further that the books and records showed that there was a 48 percent average increase in business in the five comparable stores between the years 1958 and 1962, whereas there was only a 26 percent increase in business in the Pico store. Getz produced summaries prepared from the books and records of the five comparable stores and the Pico store showing the comparative sales made both before and after the plaintiff had been deprived of the use of the parking lot. These summaries, without going into great detail here as to their content, demonstrated a loss of sales at the Pico store for the years 1959 through 1962 in the sum of $35,000, and *881 showed further that if such loss of sales figures were projected for the years 1963 and 1964 they would show an additional loss of sales in the sum of $35,000. Getz testified further that the plaintiff's net profit on the sales thus shown to have been lost would be the sum of $23,000.\n A qualified expert real estate appraiser was called as a witness on behalf of the plaintiff and he testified that in his opinion the reasonable rental value of the demised property as it existed prior to September 1958 was $600 per month, whereas the reasonable rental value of the property without access to automobile parking on the parking lot was $400 per month.\n [1] Under the terms of the lease the plaintiff was given a license coupled with an interest to occupy the parking lot in common with the other tenants in the building and to have it available as a parking lot for its customers for the term of the lease or for so long as the plaintiff was in lawful occupancy of the demised premises under the terms of the lease.\n It has been said that \"Because a licensee has no interest in the land he cannot maintain an action in trespass or ejectment. At the most, he may maintain an action to enjoin or to redress a violation of his right to exercise the license. (See annotation in 139 A.L.R. 1204.) The principle is thus stated in Bell Tel. Co. v. Baltimore & O. R. Co., 155 Pa.Super. 286 [38 A.2d 732, 733]: 'It is true that a license does not confer a right of possession sufficient to support an action in trespass quare clausum fregit (Tiffany, Real Property, 814, 829), or an action of ejectment. Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173. [2] But a licensee may maintain an action of trespass in the nature of common-law case for any invasion or disturbance of the terms of the license whether by the licensor or by third parties.' \" (Nahas v. Local 905, Retail Clerks Int. Assn., 144 Cal.App.2d 808, 821 [301 P.2d 932, 302 P.2d 829]. See also 25 Am.Jur.2d, Easements and Licenses, 36, p. 536; 53 C.J.S., Licenses, 96b, p. 822.)\n [3] The conduct of the defendants, over the objection of the plaintiff, in constructing a building upon the parking lot in such manner as to effectively deprive the plaintiff of its right to exercise its license to occupy the lot as a parking lot and to have it available, as promised, as a parking lot for customers of the plaintiff was a tortious act for which the defendants became liable to the plaintiff for damages proximately caused by such act.\n [4] It is settled that \"The measure of damages in this state for the commission of a tort, as provided by statute, is *882 that amount which will compensate the plaintiff for all detriment sustained by him as the proximate result of the defendant's wrong, regardless of whether or not such detriment could have been anticipated by the defendant. (Civ. Code, 3333.)\"\n [5] \"It is well established in California, moreover, that such damages may include loss of anticipated profits where an established business has been injured. (Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 199 [143 P.2d 12]; Hoag v. Jenan, 86 Cal.App.2d 556, 563 [195 P.2d 451]; Guttinger v. Calaveras Cement Co., 105 Cal.App.2d 382, 387 [233 P.2d 914]; Yates v. Kuhl, 130 Cal.App.2d 536, 542 [279 P.2d 563].) [6] The basis of this principle is that where the operation of an established business is prevented or interrupted by a tort, damages for loss of prospective profits, that otherwise might have been made from its operation, are ordinarily recoverable for the reason that their occurrence and extent may be ascertained with reasonable certainty from the working experience of the business, from the past volume of business, and other provable data relevant to the probable future sales. (Grupe v. Glick, 26 Cal.2d 680, 692-693 [160 P.2d 832]; Hoag v. Jenan, supra, at p. 563; Gainer v. Storck, 169 Cal.App.2d 681, 687 [338 P.2d 195]; Edwards v. Container Kraft Carton etc. Co., 161 Cal.App.2d 752, 759-761 [327 P.2d 662].) [7] Concomitant with this principle is the rule that the award for damages for loss of profits depends upon whether there is a satisfactory basis for estimating what the probable earnings would have been had there been no tort. (Natural Soda Products Co. v. City of Los Angeles, supra, at p. 199; Guttinger v. Calaveras Cement Co., supra, at p. 387; Edwards v. Container Kraft Carton etc. Co., supra, at pp. 759-761.) [8] If no such basis exists, it may be necessary to deny such recovery, but if, however, there has been an operating experience sufficient to permit a reasonable estimate of probable income and expense, damages for loss of profits are awarded. (Natural Soda Products Co. v. City of Los Angeles, at p. 199; Edwards v. Container Kraft Carton etc. Co., supra, at pp. 759-761.) While the courts have often noted the difficulty of proving the amount of loss of profit they have also recognized that a defendant cannot complain if the probable profits are of necessity estimated, the rationale being that it was the defendant himself who prevented the plaintiff from realizing profits. (See Natural Soda Products Co. v. City of Los Angeles, supra, at p. 199.) [9] Accordingly, it is clear *883 from the cases that the general principle inherent in the recovery of damages for loss of prospective profits is that the evidence must make reasonably certain their nature, occurrence and extent. In sum, such evidence must be of reasonable reliability.\" (Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, 227 Cal.App.2d 675, 702-703 [39 Cal.Rptr. 64].)\n [10] In the case at bench the evdience shows that the plaintiff had an established business at the Pico store and had for many years conducted similar business enterprises under conditions reasonably comparable to the conditions which existed at the location of the Pico store. It had kept accurate accounting records showing the profits made from the conduct of its business both before and after it was deprived of the parking lot facilities. It is reasonably certain that the plaintiff lost customers because of the lack of parking facilities available at its Pico store after the defendants commenced construction of the building on the parking lot, and the evidence introduced to show the loss of profits by reason of the loss of customers was of reasonable reliability. The evidence was both competent and sufficient to support the award of damages.\n [11] The lease contained the following provisions with respect to attorneys' fees, \"In case Lessor shall bring suit to recover any rent due hereunder or for breach of any covenant of this lease, or to recover possession of the premises, and shall recover in the suit, or if Lessee shall bring any action for any relief against Lessor, declaratory or otherwise, arising out of this lease, and Lessor shall prevail in such action, Lessee agrees to pay Lessor a reasonable attorney's fee which shall be taxed by the court as part of the costs of such action; otherwise, Lessor agrees to pay Lessee a reasonable attorney's fee.\"\n Plaintiff's action sought relief against the defendants (lessors) for their tortious invasion of the plaintiff's rights arising out of the lease. The defendants did not prevail in the action but the plaintiff did prevail. Under the provisions of the lease the plaintiff was entitled to an award of reasonable attorneys' fees. (Ansco Constr. Co. v. Ocean View Estates, Inc., 169 Cal.App.2d 235 [337 P.2d 146].)\n It appears that on October 14, 1958, the plaintiff filed an action wherein it sought a mandatory injunction to compel the defendants to remove the building erected by them on the parking lot. Upon the hearing of an order to show cause in this action an injunction was denied. The plaintiff, on June 9, *884 1961, filed a first amended complaint seeking damages for trespass. The defendants moved to dismiss the first amended complaint for failure to prosecute and this motion was granted only as to that portion of the action seeking injunctive relief. In September 1961 the plaintiff filed its second amended complaint setting forth six counts upon which it sought relief. The defendants interposed a demurrer to the second amended complaint and upon hearing the demurrer was overruled as to the first, second and sixth counts and was sustained without leave to amend as to the third and fourth counts and the fifth count was ordered stricken. Under this state of the record we cannot say that the allowance of attorneys' fees to the plaintiff in the sum of $2,500 was unreasonable. The appellants' claim that they are entitled to attorneys' fees because they were successful on demurrer in destroying three of the six counts in the second amended complaint is without merit.\n [12] Appellants' third contention that the trial court committed error in the admission of evidence relating to the income from other stores owned and operated by the plaintiff, but shown to have been operated under conditions and circumstances substantially similar to those under which the Pico store was operated is, in view of what has heretofore been said, also without merit.\n The plaintiff contends that it was not only entitled to damages measured by its loss of profits and good will but in addition thereto it was entitled to damages for the depreciation in the value of its leasehold. The trial court denied the latter upon the grounds that to allow damages for the depreciation in the value of the leasehold in addition to damages for the loss of profits and good will would constitute a double recovery.\n [13] The plaintiff continued in possession of the demised premises and operated its business thereon until the expiration of the term of the lease. The plaintiff was not evicted from the demised premises. Plaintiff's damages under these circumstances consisted of its loss of profits and good will resulting from the tortious act of the defendants in depriving the plaintiff of the parking privileges herein referred to. It was the continued use of the demised premises and the conduct of plaintiff's business thereon that brought about the loss in profits and good will. The depreciation in the value of plaintiff's leasehold under these circumstances is absorbed by and reflected in the damages for loss of profits and good will. Plaintiff, no doubt, could have sought damages upon the theory of *885 depreciation in the value of its leasehold, however, under the circumstances here shown it may not recover damages for both its loss of profits and good will and for depreciation in the value of its leasehold for this would amount to a double recovery. (Landon v. Hill, 136 Cal.App. 560, 566 [29 P.2d 281].)\n [14a] The plaintiff contends that the trial court committed error in sustaining the demurrer to the third count in the second amended complaint. This count sought recovery from the defendants of the rentals received by them from the tenants who occupied the building which the defendants had constructed upon the parking lot. Plaintiff based its right to recovery under this count upon the theory of restitution and unjust enrichment.\n It is said that \"The word 'restitution' was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. [15] The phrase 'unjust enrichment' is used in law to characterize the result or effect of a failure to make restitution of or for property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor.\"\n [16] \"It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. [17] As expressed by some authorities, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation.\" (46 Am.Jur., Restitution and Unjust Enrichment, p. 99. See also 77 C.J.S., Restitution, p. 322; 91 C.J.S., Unjust Enrichment, p. 490; 42 Cal.Jur.2d, Restitution and Unjust Enrichment, 1, p. 795.)\n [14b] The rentals received by the defendants from tenants who occupied the building constructed upon the parking lot are attributable to the defendants' ownership of and investment *886 in the land and the building constructed thereon. The plaintiff had no right in the corpus which produced the rentals. The plaintiff's right was that of a license to use the parking lot in common with other tenants who occupied portions of the demised premises. The plaintiff having been deprived of this license by the wrongful act of the defendants nevertheless has been adequately compensated for such wrong in the way of damages for its loss of profits and good will occasioned by such wrongful act. Under the circumstances there is no foundation either in law or in equity upon which the plaintiff may claim the right to the rentals received by the defendants from tenants who occupied the building which was constructed upon the parking lot. We find no error in the trial court's ruling on the demurrer to the third count in the second amended complaint.\n The judgment is affirmed. The plaintiff to recover its costs on appeal.\n Shinn, P. J., and Kaus, J., concurred.\nNOTES\n[fn. *] *. Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.\n\n", "ocr": false, "opinion_id": 2211845 } ]

[ "284 F. App'x 153" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\07/07-60624.0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n July 3, 2008\n No. 07-60624\n Summary Calendar Charles R. Fulbruge III\n Clerk\n\nIGNATIUS KUM WUNG,\n\n Petitioner,\n\nv.\n\nMICHAEL B. MUKASEY, U S ATTORNEY GENERAL,\n\n Respondent.\n\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n BIA No. A98 873 403\n\n\nBefore STEWART, OWEN, and SOUTHWICK, Circuit Judges.\nPER CURIAM:*\n Ignatius Kum Wung, a native and citizen of Cameroon, has filed a petition\nfor review of the order of the Board of Immigration Appeals (BIA) denying his\napplication for asylum, withholding of removal, and relief under the Convention\nAgainst Torture. The Immigration Judge found Wung to lack credibility, and\nWung failed to challenge that finding in his appeal to the BIA. Wung therefore\nfailed to exhaust his administrative remedies, and we are without jurisdiction\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion\nshould not be published and is not precedent except under the limited\ncircumstances set forth in 5TH CIR. R. 47.5.4.\n\f No. 07-60624\n\nto review this issue that is essential to the success of Wung’s claims. See\nTownsend v. INS, 799 F.2d 179, 181-82 (5th Cir. 1986). The petition for review\nis DISMISSED.\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 63199 } ]

[ "267 F. Supp. 2d 1139" ]

[ { "author_str": "Fuller", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1132, "opinion_text": "\n267 F.Supp.2d 1139 (2003)\nMark A. BELFAST, Plaintiff,\nv.\nUPSILON CHAPTER OF PI KAPPA ALPHA FRATERNITY AT AUBURN UNIVERSITY, et al., Defendants.\nNo. CIV.A.02-F-804-E.\nUnited States District Court, M.D. Alabama, Eastern Division.\nMay 28, 2003.\n*1140 Chris T. Hellums, C. Carter Clay, Pittman Hooks Dutton Kirby & Heliums PC, Birmingham, AL, for Mark A. Belfast, plaintiff.\nJames R. Seale, Elizabeth B. Carter, Hill, Hill, Carter, Franco, Cole & Black, B. Saxon Main, Ball, Ball, Matthews & Novak, P.A., F. Chadwick Morriss, Philip Keith Lichtman, Rushton, Stakely, Johnston & Garrett, P.A., James R. Seale, Elizabeth B. Carter, Hill, Hill, Carter, Franco, Cole & Black, Montgomery, AL, for PI Kappa Alpha Club of Auburn, Alabama, Paul D. Cunningham, Andrew Jackson, Upsilon Chapter of PI Kappa Alpha Fraternity at Auburn University, defendants.\n\nMEMORANDUM OPINION AND ORDER\nFULLER, District Judge.\nThis cause is before this Court on three separate motions to dismiss filed by Defendants Andrew Jackson on August 28, 2002 (Doc. # 10); Paul D. Cunningham on October 1, 2002 (Doc. # 19); and the Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn University on January 31, 2003 (Doc. #38). These motions have been fully briefed. No oral argument was held. After careful consideration of the relevant law and the record as a whole, the Court concludes that the motions to dismiss are due to be DENIED ir. part, and GRANED in part.\nAndrew Jackson's Motion to Dismiss is DENIED.\nPaul D. Cunningham's Motion to Dismiss is DENIED.\nThe Motion to Dismiss of the Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn University is GRANTED with respect to dismissing Plaintiff's 42 U.S.C. § 1985(3) claim (i.e., Count 3) against the Chapter, and with respect to dismissing any claims against any Defendant arising under 42 U.S.C. § 1982 (Count 2), arising under the Equal Protection Clause of the United States Constitution, or arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.\nIn all other respects, the Upsilon Chapter's Motion to Dismiss is DENIED.\n\nI. PROCEDURE HISTORY\n\nThe Plaintiff filed his Complaint (Doc. #1) on July 15, 2002. Originally the Complaint brought causes of action against Jackson, Cunningham, and the Pi Kappa Alpha Club of Auburn. In response to information produced by Defendants in their initial pleadings, memoranda, and other filings, Plaintiff amended his Complaint (Doc. # 27) and substituted the Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn University (hereinafter \"Upsilon Chapter\") for the Pi Kappa Alpha Club of Auburn, Alabama. This substitution was approved by the Court (Doc. # 31). Originally the Complaint brought three federal and four state causes of action. The causes of action based upon federal law alleged violations of 42 U.S.C. § 1981 (Count 1); 42 U.S.C. § 1982 (Count 2); and 42 U.S.C. § 1985(3) (Count 3).[1] Each of the three federal counts also *1141 alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. And, each federal cause of action was brought against each Defendant.[2] The causes of action based upon state law included assault and battery (Count 4); tort of outrage (Count 5); willfulness, wantonness and/or negligence (Count 6); and negligent supervision and control (Count 7). Counts 4 and 5 are brought exclusively against the individual Defendants, Jackson and Cunningham. Count 6 is brought against all Defendants under a theory that the Upsilon Chapter is vicariously liable for the actions of the individual Defendants. Count 7 is brought exclusively against the Upsilon Chapter. Count 2 and any cause of action arising from Title VII were voluntarily abandoned by the Plaintiff—albeit without any formal amendment of his Complaint. The only federal claims that remain are 42 U.S.C. § 1981 (Count 1) and 42 U.S.C. § 1985(3) (Count 3). See infra note 1.\nEach Defendant has moved for dismissal of the Complaint (Docs. # 10, #19, and # 38).[3] Each Defendant has brought a motion under Fed.R.Civ.P. 12(b)(6) taking the position that the Plaintiff has failed to state a claim with regard to both of the two remaining federal causes of action (Counts 1 and 3). See infra note 4. And, concomitantly, Defendants have argued that because a viable federal cause of action is lacking, this Court lacks subject matter jurisdiction to adjudicate the remaining causes of action grounded in Alabama law.\n\nII. MOTION TO DISMISS STANDARDS\n\nAs stated above, each Defendant has made a 12(b)(6) motion for failure to state a federal claim for which relief can be granted.[4] Such a motion tests the Complaint's legal sufficiency. \"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (Black, J.); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986) (per curiam) (same). \"In reviewing the complaint, we accept all well-pleaded factual allegations as true and construe the facts in the light most favorable to the *1142 plaintiff.\" Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir.2000) (Hull, J.); Romero v. City of Clanton, 220 F.Supp.2d 1313, 1315 (M.D.Ala.2002) (Albritton, C.J.) (same). Thus, \"[t]he threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is ... `exceedingly low.'\" Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985) (Clark, J.) (quoting Quality Foods de Centro America, S.A v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 995 (11th Cir.1983) (Hill, J.)).\n\nIII. FACTS BASED UPON MATERIALS PRESENTED BY THE PARTIES\n\nThe following is a brief summary of the relevant facts, accepting Belfast's wellpleaded factual allegations as true and construing them in a light most favorable to him.\nAccording to the Plaintiffs Complaint, the Upsilon Chapter is a non-profit corporation organized under the laws of Alabama. The corporate status of the Chapter is disputed by the Chapter. The exact status of the Chapter can be determined in a later stage of this litigation. And in any event, nothing in this opinion turns on the corporate status of the Chapter. The individual Defendants, Cunningham and Jackson, are both Caucasian[5] male citizens of the United States, both reside in Alabama, both are over the age of nineteen, and both are members of the Upsilon Chapter.\nMark Belfast is an African-American male residing in Alabama. He is over nineteen years old. Belfast was employed by Papa John's Pizza. Papa John's provided service to the campus of Auburn University. On April 6, 2001, Belfast was making a delivery of Papa John's food to the Upsilon Chapter. Upon arrival, Jackson poured beer on Belfast's car. Thereafter the individual Defendants cooperated with one another in physically attacking Belfast. In consequence of this attack, Belfast suffered substantial physical injuries (some of which are permanent and/or disfiguring), endured pain and suffering (including emotional and mental distress), incurred medical (and legal) bills, lost past and future wages—including future diminished earning capacity. Prior to this incident, Cunningham had already verbally assaulted Belfast on another occasion ostensibly for delivering pizza to the wrong address and that both incidents were a result of racial animus. The Upsilon Chapter knew of (or should have known of) both the prior incident and it knew of (or should have known of) other similar incidents.\n\nIV. DISCUSSION\n\nPlaintiff has brought causes of action grounded in federal and state law. Defendants have moved to dismiss the federal claims under Fed.R.Civ.P. 12(b)(6). Defendants have also, correctly, argued that in the absence of a viable federal claim, this Court lacks jurisdiction to hear the state law claims. The Court will examine each one of these contentions in turn.\n\n1. Federal Claims\nPlaintiff brings a cause of action alleging that Defendants violated his rights under 42 U.S.C. § 1981(a) (2003):\n\n*1143 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.\nThe current statute is devolved from the Civil Rights Act of April 9, 1866, c. 31, 14 Stat. 27 (1866). And, it has remained substantially unchanged—at least until the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991). In interpreting the statutory language, supra, the Supreme Court has held:\nBy its plain terms, the relevant provision in § 1981 protects two rights: \"the same right ... to make ... contracts\" and \"the same right ... to ... enforce contracts.\" The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment.... [P]ostformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.\n.....\nThe second of these guarantees, \"the same right ... to ... enforce contracts... as is enjoyed by white citizens,\" embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contractlaw claims without regard to race. In this respect, it prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race, and this is so whether this discrimination is attributed to a statute or simply to existing practices.\nPatterson v. McLean Credit Union, 491 U.S. 164, 176-77, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (Kennedy, J.) (emphasis added).\nIn the instant case, Plaintiff has not argued that his access to the legal process or his right to enforce a contract to which he is a party has been denied on account of race. Instead, Plaintiff has alleged in his Complaint that the assault and battery allegedly committed by the Defendants: (i) interfered with his right to make a contract of sale with a Papa John's customer to whom he was making a yet uncompleted delivery; and (ii) interfered with his meeting his contractual obligations and duties owed his employer.[6] Compl. ¶¶ 10, 18.[7]\n*1144 Defendants dispute Plaintiffs factual contention and instead argue that Plaintiffs Complaint indicates that the food delivery was actually made and completed so that no contract for the sale of food was interfered with. (Doc. # 40 at ¶ 18; Doc. #41 at ¶ B; Doc. #42 at ¶ A; Doc. #47 at ¶ A.) Moreover, Defendants argue that any alleged interference with Plaintiffs completing this particular sale wholly relates to postformation employment contract conditions or performance, and therefore, as a matter of law, is not actionable. See, e.g., Doc. #42 at ¶ A; Patterson at 176-77,109 S.Ct. 2363.\nWith regard to the allegedly uncompleted contract for the sale of food, Plaintiff would not have been a party to that contract. The parties to that contract would have been Papa Johns (Plaintiffs employer) and the would-be customer. Whether or not an agent of a party to a contract can be said \"to make\" a contract as required by 42 U.S.C. § 1981 presents an interesting question of law. But it is not a question the Court must resolve because the Court is persuaded that Plaintiffs Complaint can be sustained with respect to the second contract, the employment contract. As explained above, Patterson, a decision of the United States Supreme Court, held that postformation contract conditions or performance is, or rather was, not actionable under 42 U.S.C. § 1981. Patterson was decided in 1989. As explained above, in 1991 Congress amended 42 U.S.C. § 1981 by adding new language expanding the reach of the statute. Civil Rights Act of 1991 § 3, Pub.L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991) (\"The purpose[] of this Act [is] to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.\") (emphasis added). The statute now includes the following language:\nFor purposes of this section, the term \"make and enforce contracts\" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.\n42 U.S.C. § 1981(b) (2003) (emphasis added).\nIn short, Patterson is no longer controlling law because it has been superseded by a more recent statute. See Jones v. Firestone Tire and Rubber, Co., Inc., 977 F.2d 527, 534 n. 8 (11th Cir.1992) (Tjoflat, C.J.). Moreover, just as Patterson is no longer controlling law, the bulk of the case law put forward by the parties in their briefing is not persuasive because those cases predate the 1991 amendments. See, e.g., Croy v. Skinner, 410 F.Supp. 117, 125 (N.D.Ga.1976). Plaintiff's employment contract is a contract for the purposes of this statute. Plaintiffs postformation performance under the employment contract is protected under the statute as amended. See Rogers v. Elliott, 135 F.Supp.2d 1312, 1314 (N.D.Ga.2001) (Pannell, J.) (including \"performance\" as protected activity). Moreover in a § 1981 case, Plaintiff is free to seek his remedy against the counterparty to the contract or against a thirdparty interferer. See, e.g., Faraca v. Clements, 506 F.2d 956, 959 (5th Cir.1975) (Clark, J.) (\"a third party's interference with those rights guaranteed under Section[] 1981 ... will subject such a person to personal liability\"); see also Vakharia v. Swedish Covenant Hosp., 765 F.Supp. 461, 471 (N.D.Ill.1991) (\"relationship between the plaintiff and the third party-interferer is irrelevant\") (decided prior to Civil Rights Act of 1991).\nPlaintiff alleges that the attack was motivated by racial animus. Compl. ¶ 15. Defendants contend that Plaintiffs federal claims are insufficiently supported with factual allegations supporting racial *1145 animus as a motive and further contend that the bare bones statements in the Complaint alleging racial animus as the motive for the alleged attack are facially insufficient as a matter of law. (Doc. # 47 at 3-4.) Defendants' position is not well taken.[8] Not every attacker motivated by racial animus expresses the reason for his attack at the time of the battery. But cf. Walker v. Shepard, 107 F.Supp.2d 183 (N.D.N.Y.2000). Thus the absence of detailed factual allegations with regard to the confrontation is not conclusive that race was not a motivating fact. Plaintiff must have an opportunity to develop supporting facts through discovery. Nor do we expect plaintiffs to engage in extensive background checks of defendants prior to discovery in order to uncover material facts that might better support the allegations in their complaint. Such evidentiary development comes after the first round of dispositive motions, not before. In short, if a member of a minority group is attacked, without provocation, and the attackers cooperate, it is reasonable to infer and a plaintiff can properly allege—without any other supporting proof—that the attack was racially motivated. At a later stage of this litigation, Defendants are, of course, free to establish by affidavit or other competent evidence that: (i) there was no attack; or (ii) that the \"attack\" was provoked; or (iii) that the attackers did not act cooperatively or on the basis of some prior agreement; or (iv) that even if Defendants engaged in an unprovoked attack in conformity with some prior agreement, the attack itself was animated by nonracial motives. But at this stage, particularly because factual information relating to motive and purpose is peculiarly in the hands (and minds) of the Defendants, Plaintiff cannot be expected to do more than allege racial motivation or bias.\nDefendants further argue that the allegation of racial bias is contradicted by *1146 other factual allegations in the Complaint. (Doc. # 47 at 3-4.) Defendants note that the alleged assault occurred after a prior incident at least in part caused by Plaintiffs misdelivery of some pizza. Specifically, Defendant Upsilon Chapter argues that the verbal confrontation between Defendant Cunningham and the Plaintiff in the prior incident fully explains the alleged attack that is the subject matter of this litigation without recourse to any theory of racial bias. Id. Defendant's position is not well taken. It is not contradictory to assert that the disputed incident can have more than one motive—which is precisely what Plaintiff alleges in his Complaint. Compl. ¶ 12 (prior incident caused by misdelivery of pizza and racial bias). Contrary to Defendant's statement, the claim of \"mis-delivered pizza [does not] negate[ ] racial animus as a reason.\" (Doc. # 47 at 4.)\nIn addition to Plaintiffs 42 U.S.C. § 1981 claim, Plaintiff has also brought a claim against all Defendants for violating his rights under 42 U.S.C. § 1985(3).[9] This statute makes it illegal to participate in a conspiracy to deny a third-party his or her civil rights. Defendants have to all intents and purposes made identical arguments with respect to both Plaintiffs § 1981 and § 1985(3) causes of action. As explained above, Defendants have argued that Plaintiffs general allegation of racial animus based upon an alleged attack is insufficient to withstand a motion to dismiss. The Court has already rejected Defendants' argument with regard to Plaintiffs § 1981 claim. For the same reasons, this Court also rejects Defendants' argument with regard to Plaintiffs § 1985(3) claim. Under the circumstances of this case and at this stage of the litigation, Plaintiffs having made a good faith allegation of racial animus will withstand a motion to dismiss.\nAdditionally, the Upsilon Chapter has argued that Plaintiffs § 1985(3) claim must fail because \"there is no allegation of racial animus or a conspiracy based on racial animus with regards to the Chapter.\" (Doc. # 41 at 4) (emphasis added). Defendant's point is well taken. The Complaint alleges the existence of a conspiracy, but it does not allege that the Chapter was a member of that conspiracy. It does not allege a meeting of the minds between the Chapter (or its officers and agents) and any other individual Defendant, nor does it allege that the Chapter acted in concert with any other individual Defendant.\nUnder the first § 1985(3) element, a plaintiff must show \"an agreement *1147 between the members of the alleged conspiracy.\" Godby v. Montgomery County Bd. of Educ, 996 F.Supp. 1390, 1412 (M.D.Ala.1998) [ (Albritton, C.J.) ]. As explained in Godby, \"[although the existence of a conspiracy may be supported by circumstantial evidence, there must be some indication that the individuals were acting, in some sense, in concert.\" Id. \"Where there is no indication of an agreement to act against the ... rights of an individual there is no cause of action under § 1985.\" Id. Campbell v. Civil Air Patrol, 131 F.Supp.2d 1303, 1315 (M.D.Ala.2001) (DeMent, J.). In the instant litigation, there is nothing for Plaintiff to show with regard to the Chapter's participating in the conspiracy because its participation in the conspiracy has not even been alleged in the Complaint. This shortcoming is fatal to Plaintiffs § 1985(3) claim against the Chapter.[10] At most, the Complaint alleges that the Chapter had knowledge of the propensities and actions of the individual Defendants.[11] And knowledge is not sufficient. Id. at 1316 (\"Furthermore, assuming for the sake of argument that Parkhurst had knowledge of the `no talk' directive and the firing decisions, such knowledge or even acquiescence is not tantamount to an agreement.\").\nThe Upsilon Chapter stated in it Motion to Dismiss that venue was improper. (Doc. # 38) However no argument was forthcoming in its brief on this point of law. Therefore the Court will not address the issue of venue. (Doc. # 41) Additionally the Chapter has argued that Plaintiffs claims arising under 42 U.S.C. § 1982 (Count 2), arising under the Equal Protection Clause of the United States Constitution, and arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. are without merit. Plaintiff has expressly abandoned these claims. See supra note 1. It will be so ordered.\n\n2. State Claims\nDefendants have argued that this Court lacks supplemental jurisdiction over the counts grounded in Alabama law because the Court lacks jurisdiction over any viable federal claim. The Court has already rejected Defendants' position with regard to the viability (at this stage) of Plaintiffs federal claims. Furthermore, the Defendants in their motions to dismiss have made no free-standing arguments against the facial sufficiency of the state law claims. The Upsilon Chapter in a reply brief did discuss Alabama state case law, but this discussion was wholly in the context of addressing the sufficiency of Plaintiffs § 1985(3) claims. (Doc. # 47 at 3-6.) Nowhere have the Defendants asked this Court to apply those arguments (or any other arguments) to test the legal sufficiency of the state law claims. Moreover, the Court will not address arguments made for the first time in a reply brief. See, e.g., Tallahassee Memorial Regional Medical Center v. Bowen, 815 F.2d 1435, *1148 1446 n. 16 (11th Cir.1987) (Clark, J.) (\"It is well settled that a party cannot argue an issue in its reply brief that was not preserved in its initial brief.\") (citing United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir.1984) (per curiam)).\nBecause Plaintiff's federal claims survive Defendants' motions to dismiss, the Court has supplemental jurisdiction to hear each and every state law cause of action. (Counts 4-7) In summary judgment motions following discovery, Defendants may bring up such arguments as they think proper to test the legal sufficiency of the state law claims—if such arguments have not already been waived.\n\nV. CONCLUSION\nFor the foregoing reasons, it is hereby ORDERED as follows:\nAndrew Jackson's Motion to Dismiss is DENIED.\nPaul D. Cunningham's Motion to Dismiss is DENIED.\nThe Motion to Dismiss of the Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn University is GRANTED with respect to dismissing Plaintiffs 42 U.S.C. § 1985(3) claim (i.e., Count 3) against the Chapter, and with respect to dismissing any claims against any Defendant arising under 42 U.S.C. § 1982 (Count 2), arising under the Equal Protection Clause of the United States Constitution, or arising under Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e et seq.\nIn all other respects, the Upsilon Chapter's Motion to Dismiss is DENIED. A separate Order will be entered in accordance with this Memorandum Opinion.\nNOTES\n[1] Within Counts 1,2, and 3, Plaintiff Belfast also asserted that Defendants' actions violated Plaintiff's rights under the Equal Protection Clause. It is unclear if Plaintiff meant, even at that time, to support a cause of action directly arising under the Equal Protection Clause. In any event, in a subsequent memorandum, Plaintiff has rejected any such position. See Mark A. Belfast's Memorandum Brief in Opposition to the Motion to Dismiss filed by Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn University at 3 (Plaintiff has \"abandoned all federal law-based causes of action except for claims predicated on 42 U.S.C. § 1985(3) and 42 U.S.C. § 1981.\") (bold omitted) (Doc. # 43).\n[2] The Plaintiff argues that this Court has jurisdiction under 28 U.S.C. §§ 1331, 1343(1)(4). The Court agrees.\n[3] Defendants briefs in support of their motions to dismiss can be found at: Doc. # 11 (Jackson); Doc. #16 (Jackson) (supplemental); Doc. # 14 (Pi Kappa Alpha Club of Auburn, Alabama) (brief of a Defendant dismissed from case); Doc. # 42 (Cunningham); Doc. #41 (Upsilon Chapter); Doc. #47 (Upsilon Chapter) (reply brief).\n[4] Fed.RXiv.P. 12(b)(6) is specifically referenced by Defendants Jackson and Cunningham's motions to dismiss (Docs. # 10 and # 19). However, the Upsilon Chapter's motion to dismiss (Doc. # 38) is brought generically under Rule 12(b). The Court assumes that the Upsilon Chapter's position is consistent with its co-defendants. The Defendants' briefs sometimes indicate that the individual motions are brought both under 12(b)(6) and 12(b)(1) (lack of jurisdiction over the subject matter), but no arguments were presented with specific reference to 12(b)(1).\n[5] Oddly, the (apparent) fact that both individual Defendants are Caucasian does not appear in Plaintiff's Complaint. But see Pi Kappa Alpha Club of Auburn, Alabama's Brief in Support of its Motion to Dismiss at 4 (\"the individual defendants are Caucasian\") (Doc. # 14); Upsilon Chapter of Pi Kappa Alpha Fraternity at Auburn University's Brief in Support of its Motion to Dismiss at 4 (Doc. #41) (same). However, nothing in this opinion hinges on determining the race of the individual Defendants.\n[6] Plaintiff's contractual obligations to his employer would have been implicated had he failed to complete the sale of food. Alternatively, even if Plaintiff was injured after completing the sale, had Plaintiff's injuries rendered him unable to return to work to perform other duties, including making further deliveries, then his contractual obligations to his employer would have been equally implicated. In either event, whether the sale of food was completed or not, the Complaint expressly asserts allegations that Plaintiff's injuries left him unable to perform some of his duties owed to his employer under the employment contract. Compl. ¶ 18.\n[7] Although Plaintiff's Complaint was not a model of clarity, Plaintiff's Complaint put Defendants on sufficient notice that the Defendants' alleged assault interfered with two contracts: (i) a contract for the delivery and sale of food between Papa John's and some unnamed customer; and (ii) an employment contract between Papa John's and the Plaintiff. Compl. ¶ 18; cf. also Mark A. Belfast's Memorandum Brief in Response to the Recently Filed Brief in Support of Motion to Dismiss by Defendant Paul D. Cunningham at 2-3 (\"The underlying assault allegedly occurred while Mark Belfast was in the process of completing a commercial transaction .... [Defendants interfered with Mark Belfast's ability to perform a contractual obligation.\").\n[8] Defendants note that the district court in Walker v. Shepard, 107 F.Supp.2d 183 (N.D.N.Y.2000), upheld the plaintiff's § 1985(3) claim. Nevertheless Defendants seek to rely on this case by distinguishing it from the instant litigation. Defendants argue that Walker is distinguishable from the instant litigation because the Walker plaintiff produced \"substantial evidence\" of a conspiracy motivated by race. The Defendants are partly correct. Walker is distinguishable from the instant litigation because it was a decision on a motion for summary judgment; a case in such a posture imposes a burden on the plaintiff to produce facts supporting every element of his claim. In this litigation, at the motion to dismiss stage, no such burden falls on the Plaintiff; Plaintiffs well-pleaded allegations are sufficient to survive a motion to dismiss. Another decision cited by the Chapter, Jackson v. County of JJOS Angeles, 29 Fed.Appx. 430, 2001 WL 1667801 (9th Cir.2001) (unpublished disposition), was an appeal following a full trial below—procedurally well passed both the summary judgment and motion to dismiss stages. Again, Gray v. City of Eufaula, 31 F.Supp.2d 957 (M.D.Ala. 1998) (De-Ment, J.), cited by Defendants, is not on-point because it was a decision on a motion for summary judgment. The same can be said for countless other cases cited by Defendants, including: Brown v. Masonry Prods., Inc., 874 F.2d 1476 (11th Cir.1989); Cartwright v. Tacala, Inc., Civ. A. No. 99-00663, 2000 WL 33287445 (M.D.Ala., Nov. 1, 2000) (Walker, M.J.); etc. Thus the Plaintiff has the right to avail himself of an opportunity to produce evidence after discovery supporting his yet unproven allegations of racial animus. See also Harry v. Marchant, 237 F.3d 1315 (11th Cir.) (\"Indeed, the amended complaint alleges that (1) Normil was a member of a racial minority, (2) Appellees intended to discriminate based on Normil's race, and (3) the discrimination concerned an alleged contractual obligation. Therefore, we reverse the district court's ruling dismissing this claim.\") (emphasis added), vacated en banc, 259 F.3d 1310 (11th Cir.2001), reinstated en banc, 291 F.3d 767 (11th Cir.2002); Hughes v. Ranger, 467 F.2d 6, 10 (4th Cir. 1972) (granting motion to dismiss in a § 1985(3) action where \"the plaintiffs make no allegations [in their complaint] of any class-based motivation on the part of the defendants\").\n[9] 42 U.S.C. § 1985(3) (2003) provides: \"[i]f two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages; occasioned by such injury or deprivation, against any one or more of the conspirators.\"\n[10] Defendant Jackson has not incorporated by reference the arguments or briefs put forward by the Upsilon Chapter. But Defendant Cunningham has. The Complaint, however, alleged that the individual Defendants cooperated during the alleged unprovoked attack on the Plaintiff. Compl. ¶ 10. And the Complaint alleged that this conduct was in furtherance of a conspiracy. Id. at ¶ 25. This puts the individual Defendants on sufficient notice that Plaintiff has alleged that they were members of the alleged conspiracy.\n[11] Similarly Plaintiff's Memorandum Brief in Opposition to the Motion to Dismiss Filed by Upsilon Chapter nowhere specifically alleges that the Chapter conspired with any individual Defendant or Defendants to deprive Plaintiff of any right. Moreover, in discussing a state law claim, albeit not the § 1985(3) claim discussed here. Plaintiff took the position that the Chapter merely \"authorized or encouraged\" the actions of the individual Defendants. (Doc. # 43 at 15.) No agreement was alleged.\n\n", "ocr": false, "opinion_id": 2574364 } ]

[ "728 P.2d 994" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n728 P.2d 994 (1986)\nPaul George MARTINEZ, Plaintiff and Respondent,\nv.\nCarolyn K. MARTINEZ, Defendant and Appellant.\nNo. 860264.\nSupreme Court of Utah.\nNovember 3, 1986.\nDavid S. Dolowitz, Salt Lake City, for defendant and appellant.\nSteven Kuhnhausen, Salt Lake City, for plaintiff and respondent.\nPER CURIAM:\nDefendant Carolyn K. Martinez appeals that portion of the divorce decree awarding plaintiff custody of their four-year-old daughter. We follow our recent decision in Smith v. Smith, 726 P.2d 423 (Utah 1986), and remand the case to the district court for entry of additional written findings of fact that adequately support the child custody award.\nAt the divorce trial, both parties testified as to their desires and abilities to provide for their daughter. The testimony of other witnesses and experts' evaluations were also before the trial court. Following trial, the district judge issued a March 4, 1986 memorandum decision wherein he wrote that \"custody of the minor child ... is awarded to the plaintiff with reasonable visitation to the defendant.\" Plaintiff's counsel was instructed to prepare findings of fact, conclusions of law, and a decree consistent with the court's ruling. With regard to the custody issue, the findings of fact and conclusions of law, prepared by counsel and entered by the court, merely provided:\n4. During the course of the marriage the parties had born as their issue one minor child... . The Court finds that Plaintiff is a fit and proper person to be awarded the care, custody and control of said minor child, subject to Defendant's reasonable rights of visitation.\nNo finding was made as to the relative parenting abilities of the parties or the best interests of the child. Defendant argues that this finding alone is insufficient to support the custody award or to permit meaningful review on appeal. We agree. Plaintiff rejoins that his evidence at trial adequately supports the custody determination. But, because there is nothing before us in the findings or the record to indicate what evidence or factors the trial court considered in its award or whether the award was made \"in the best interests\" of the child, we cannot meaningfully review the final decree. The fact that we may review the evidence and make our own findings in equity matters cannot serve as an excuse for the failure below to furnish adequate findings to ensure that the trial court's discretionary determination was rationally based.\nAs we stated in Smith v. Smith, supra:\n[I]f our review of custody determinations is to be anything more than a superficial exercise of judicial power, the record on review must contain written findings of fact and conclusions of law by the trial judge which specifically set forth the reasons, *995 based on those numerous factors which must be weighed in determining \"the best interests of the child,\" and which support the custody decision... . [T]he factors relied on by the trial judge in awarding custody must be articulable and articulated in the judge's written findings and conclusions.\n726 P.2d at 425-426.\nA mere finding that the parties are or are not \"fit and proper persons to be awarded the care, custody and control\" of the child cannot pass muster when the custody award is challenged and an abuse of the trial court's discretion is urged on appeal. This is particularly so in this case, where the mother's temporary custody was terminated and permanent custody was awarded to the father without any explanation or statement of the reasons therefor.\nThe findings and conclusions of the trial judge are not required to be unnecessarily lengthy or exhaustive. But, in custody determinations, as in other matters, the Court's findings and conclusions should evidence sufficient detail and logic to demonstrate a factual and rational basis for the ultimate decision. To fulfill this aim, they should refer to specific factors that are pertinent to the decision of what placement is in the best interests of the child, including the particular needs of the child and the ability of each parent to meet those needs. Smith v. Smith, supra; see Hutchison v. Hutchison, 649 P.2d 38, 41-42 (Utah 1982).\nThe award of custody is vacated, and the case is remanded for the appropriate additional findings of fact.\n", "ocr": false, "opinion_id": 2606476 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 16, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv1860-39", "author_id": 3292, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\nMETROIL, INC., :\n :\n Plaintiff, : Civil Action No.: 09-1860 (RMU)\n :\n v. : Re Document Nos.: 12, 13\n :\nEXXONMOBIL OIL :\nCORPORATION et al., :\n :\n Defendants. :\n\n MEMORANDUM OPINION\n\n GRANTING THE DEFENDANTS’ MOTIONS TO DISMISS\n\n I. INTRODUCTION\n\n This case is before the court on the defendants’ motions to dismiss for failure to state a\n\nclaim for which relief can be granted. The plaintiff is the operator of an Exxon-branded retail\n\ngas station in the District of Columbia. Defendants ExxonMobil Corporation (“ExxonMobil”)\n\nand ExxonMobil Oil Corporation (“ExxonMobil Oil” and, together with ExxonMobil, “the\n\nExxonMobil defendants”) are engaged in the business of oil production and refining. Until June\n\n2009, the plaintiff leased the property on which its gas station is located from ExxonMobil and\n\noperated it pursuant to a franchise agreement with ExxonMobil Oil. In June 2009, the\n\nExxonMobil defendants sold the station property and assigned the franchise agreement to\n\ndefendant Anacostia Realty, LLC (“Anacostia”), a gasoline distributor that owns and supplies\n\nseveral retail gas station properties in the District of Columbia. The plaintiff alleges that the sale\n\nand assignment violated the District of Columbia Retail Service Station Amendment Act of 2009\n\n(“RSSA”), D.C. CODE §§ 36-304.11 et seq., the Petroleum Marketing Practices Act (“PMPA”),\n\f15 U.S.C. §§ 2801 et seq., and amounted to a breach of its franchise agreement. Because the\n\nRSSA was not in effect at the time of the transfer, and because the allegations contained in the\n\ncomplaint are insufficient to establish a violation of the PMPA or a breach of the franchise\n\nagreement, the court grants the defendants’ motions to dismiss for failure to state a claim for\n\nwhich relief can be granted.\n\n\n\n II. BACKGROUND\n\n A. The Statutory Framework\n\n The PMPA regulates the circumstances in which petroleum refiners and distributors can\n\nterminate franchise agreements with retail gas station operators. See generally 15 U.S.C. §§\n\n2801 et seq. The statute applies to any contract that authorizes a franchisee to use the\n\nfranchisor’s trademark, purchase the franchisor’s branded motor fuel and occupy service station\n\nproperty owned by the franchisor. Id. § 2801(1). The PMPA distinguishes between “franchise\n\nagreements,” which are individual contracts between franchisor and franchisee, and the\n\n“franchise relationship,” which it defines as the ongoing “motor fuel marketing or distribution\n\nobligations and responsibilities . . . which result from” the individual franchise agreements\n\nentered into by franchisors and franchisees. Id. § 2801(1)-(2). Under the PMPA, franchisors are\n\nprohibited from terminating a franchise agreement or refusing to renew a franchise relationship\n\nfor any reason other than those specified in the Act. Id. § 2802, 2804. To enforce this\n\nprohibition, the PMPA provides a franchisee who suffers wrongful termination or non-renewal a\n\nprivate right of action against the breaching franchisor. Id. § 2805.\n\n Although the PMPA preempts state law regarding the termination and non-renewal of\n\ncovered franchise agreements, it expressly reserves to the states the power to regulate the\n\n\n\n\n 2\n\ftransferability and assignability of franchise agreements. Id. § 2806(a)-(b). Taking advantage of\n\nthis reservation, in May 2009, the District of Columbia City Council approved the RSSA, which,\n\ninter alia, restricts the assignment of gas station franchise agreements by requiring a refiner\n\nplanning to sell a leased service station and assign a franchise agreement to a gasoline distributor\n\nto provide a right of first refusal to the station’s operator. D.C. CODE § 36-304.12. Following\n\ntransmittal to Congress, the RSSA became law on July 18, 2009. See id. § 36-304.11.\n\n B. Factual & Procedural Background\n\n From 2003 until June 2009, the plaintiff operated an Exxon-branded retail gas station\n\nleased from ExxonMobil pursuant to a series of franchise agreements with ExxonMobil Oil.\n\nCompl. ¶ 7. In 2008, the ExxonMobil defendants allegedly began divesting themselves from the\n\nretail gas station market, selling gas station properties and assigning franchise agreements to\n\ndistributors. Id. ¶ 11. The plaintiff alleges that on June 12, 2009, the ExxonMobil defendants\n\nsold the property on which the plaintiff’s gas station is located and assigned their franchise\n\nagreement with the plaintiff to Anacostia. Id. ¶¶ 10, 21.\n\n The plaintiff alleges that its franchise agreement was set to expire on June 30, 2009, but\n\nthat in March 2009, ExxonMobil Oil extended the agreement until July 31, 2009. Id. ¶ 17. The\n\nplaintiff contends that neither Anacostia nor the ExxonMobil defendants have offered to enter\n\ninto a new franchise agreement with the plaintiff. Id. ¶ 27. The plaintiff acknowledges,\n\nhowever, that “Anacostia has replaced ExxonMobil Oil as Metroil’s supplier” and that Anacostia\n\nhas supplied Metroil with motor fuel. See id. ¶ 26. The plaintiff asserts that since the\n\nassignment of the franchise agreement to Anacostia, Anacostia has required pre-payment for\n\nmotor fuel, raised its prices and withdrawn excessive funds from the plaintiff’s bank account. Id.\n\n\n\n\n 3\n\f The plaintiff commenced this suit in September 2009, alleging that the ExxonMobil\n\ndefendants violated the RSSA and the PMPA and breached the terms of the franchise agreement\n\nby assigning it to Anacostia. Id. ¶¶ 29, 34, 38, 41. Additionally, the plaintiff alleges that\n\nAnacostia conspired with the ExxonMobil defendants to violate the RSSA and violated the\n\nPMPA by failing to renew the plaintiff’s franchise relationship. Id. ¶¶ 31, 39. In November\n\n2009, the ExxonMobil defendants filed a motion to dismiss for failure to state a claim, see\n\ngenerally ExxonMobil Defs.’ Mot., and Anacostia filed a motion to dismiss for failure to state a\n\nclaim, or, in the alternative, for summary judgment,1 see generally Def. Anacostia’s Mot. With\n\nthese motions now fully briefed, the court turns to the applicable legal standard and the parties’\n\narguments.\n\n\n\n III. ANALYSIS\n\n A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss\n\n A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.\n\nClinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain\n\nstatement of the claim, giving the defendant fair notice of the claim and the grounds upon which\n\nit rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing\n\nFED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice\n\npleading is made possible by the liberal opportunity for discovery and the other pretrial\n\nprocedures established by the Rules to disclose more precisely the basis of both claim and\n\ndefense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48\n\n\n1\n Because the court grants Anacostia’s motion to dismiss for failure to state a claim, it need not\n consider the arguments for summary judgment, and it disregards the materials outside the\n pleadings submitted in support of and in opposition to the summary judgment portion of\n Anacostia’s motion.\n\n\n 4\n\f(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of\n\nhis prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002),\n\nor “plead law or match facts to every element of a legal theory, Krieger v. Fadely, 211 F.3d 134,\n\n136 (D.C. Cir. 2000) (internal quotation marks and citation omitted). That said, “it is possible\n\nfor a plaintiff to plead too much: that is, to plead himself out of court by alleging facts that render\n\nsuccess on the merits impossible.” Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1116 (D.C.\n\nCir. 2000)\n\n Yet, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,\n\naccepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.\n\nCt. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S.\n\n544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing\n\ncourts not to dismiss for failure to state a claim unless it appears beyond doubt that “no set of\n\nfacts in support of his claim [] would entitle him to relief”). A claim is facially plausible when\n\nthe pleaded factual content “allows the court to draw the reasonable inference that the defendant\n\nis liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at\n\n556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more\n\nthan a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at\n\n556).\n\n In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual\n\nallegations – including mixed questions of law and fact – as true and draw all reasonable\n\ninferences therefrom in the plaintiff’s favor. Holy Land Found. for Relief & Dev. v. Ashcroft,\n\n333 F.3d 156, 165 (D.C. Cir. 2003); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).\n\nWhile many well-pleaded complaints are conclusory, the court need not accept as true inferences\n\n\n\n\n 5\n\funsupported by facts set out in the complaint or legal conclusions cast as factual allegations.\n\nWarren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242.\n\n“Threadbare recitals of the elements of a cause of action, supported by mere conclusory\n\nstatements, do not suffice.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).\n\n B. The Court Grants the Defendants’ Motions to Dismiss for Failure to State a Claim\n\n1. The Plaintiff Has Not Stated a RSSA or Civil Conspiracy Claim Because the RSSA Was\n Not In Effect at the Time of the Sale and Does Not Apply Retroactively\n\n In Count I of its complaint, the plaintiff asserts that the ExxonMobil defendants violated\n\nthe RSSA by selling its station property and assigning its franchise agreement to Anacostia\n\nwithout offering the plaintiff a right of first refusal. Compl. ¶ 29. In Count II of its complaint,\n\nthe plaintiff alleges that Anacostia conspired with the ExxonMobil defendants to perpetrate the\n\naforementioned violation of the RSSA. Compl. ¶ 31. The defendants argue that the plaintiff’s\n\nallegations preclude relief under the RSSA because the sale at issue occurred before July 18,\n\n2009, when the RSSA went into effect, and because the statute does not apply retroactively.\n\nExxonMobil Defs.’ Mot. at 4; Def. Anacostia’s Mot. at 15. In response, the plaintiff concedes\n\nthat the sale preceded the effective date of the RSSA, but argues that the language of the RSSA\n\ndemonstrates that it applies retroactively to all transactions occurring after April 1, 2009. Pl.’s\n\nOpp’n to ExxonMobil Defs.’ Mot. at 3-12; Pl.’s Opp’n to Def. Anacostia’s Mot. at 6-9.\n\n No court has yet decided whether the RSSA applies retroactively to sales that closed prior\n\nto its effective date. It is, however, a “well-settled principle” in the District of Columbia that\n\n“retroactive applications of legislation are not to be presumed absent express legislative language\n\nor other clear implication that such retroactivity was intended.” Redman v. Potomac Place\n\nAssocs., LLC, 972 A.2d 316, 319 n.4 (D.C. 2009) (citing Alpizar v. United States, 595 A.2d 991,\n\n\n\n\n 6\n\f993-94 (D.C. 1991)); see also Landgraf v. USI Film Prods., 511 U.S. 244, 265 (noting that “the\n\npresumption against retroactive legislation is deeply rooted” in American jurisprudence).\n\n The RSSA contains no language expressly dictating its retroactive application. See\n\ngenerally D.C. CODE § 36-304.11-304.15. The Act does, however, contain a provision, titled\n\n“Applicability,” which specifies that its terms “shall not apply to any sale of leased marketing\n\npremises made pursuant to a contract which has been executed . . . prior to April 1, 2009.” Id.\n\n§ 36-304.15. The plaintiff asks the court to infer from this sentence that the RSSA applies to all\n\ntransactions made pursuant to contracts executed on or after April 1, 2009, even if the\n\ntransactions were completed before the RSSA became law. See Pl.’s Opp’n to ExxonMobil\n\nDefs.’ Mot. at 4. The “Applicability” provision, however, purports to limit rather than expand\n\nthe application of the statute. See D.C. CODE § 36-304.15. The more natural reading of this\n\nprovision is that it excludes from the Act’s coverage those transactions that, although they were\n\ncompleted after the RSSA became law, were anticipated by contracts executed before April 1,\n\n2009. Accordingly, the court declines the plaintiff’s invitation to stretch the language of this\n\nprovision to create an implication of retroactivity and concludes that the express terms of the\n\nRSSA do not support its retroactive application.\n\n This construction of the statute is consistent with the legislative history set forth in the\n\nCommittee Report on the RSSA. See generally Def. Anacostia’s Mot., Ex. A (“Committee\n\nReport”). The Committee Report demonstrates that the Applicability provision was absent from\n\nthe original bill and was added in committee as a clarification “in order to avoid potential\n\nconstitutional problems related to the impairment of contracts.” Committee Report at 10. Thus,\n\nthe Committee Report makes it clear that the “Applicability” provision was intended to limit\n\nrather than expand the applicability of the statute. Additionally, the fact that the committee\n\n\n\n\n 7\n\flimited the application of the RSSA to avoid “constitutional problems related to the impairment\n\nof contracts” does not suggest that the committee assumed that the statute would apply\n\nretroactively, as issues of contractual impairment could plainly arise even if the statute only\n\napplied prospectively, due to the possibility that transactions anticipated by contracts executed\n\nbefore April 1, 2009 would close after the Act became law.2\n\n Furthermore, a construction of the statute that applies it only prospectively is supported\n\nby District of Columbia law regarding retroactive legislation. D.C. law disfavors statutory\n\ninterpretations which “‘impose new duties with respect to transactions already completed,’”\n\nHolzsager v. D.C. Alcoholic Beverage Control Bd., 979 A.2d 52, 57 (D.C. 2009) (quoting\n\nLandgraf, 511 U.S. at 280). Such “true retroactive application[s]” of a statute, Redman, 972\n\nA.3d at 319 n.4, are distinguished from retroactive applications of laws which merely “provide\n\nfor changes in procedure” for adjudicating the significance of prior conduct and are generally\n\nacceptable, Duvall v. United States, 676 A.2d 448, 450 (D.C. 1996); see also Holzsager, 979\n\nA.2d at 58 (concluding that laws that affect only procedures rather than substantive rights can be\n\napplied to conduct that preceded their enactment). To apply the RSSA retroactively would\n\ncreate a new duty – the duty to offer a right of first refusal – for transactions fully consummated\n\nwhen the Act became law, making an interpretation of the Act and would thus be presumptively\n\ninappropriate under Holzsager. 979 A.2d at 57. Indeed, the District of Columbia Court of\n\n2\n The Committee Report does indicate that at least one councilmember viewed the RSSA as an\n “urgent measure” and hoped that it would apply to the “proposed sale by Exxon of its interests in\n the District’s retail service stations.” Committee Report at 9. The issue, however, is not whether\n the Council hoped the RSSA would cover a particular anticipated transaction that, as it turns out,\n occurred before the statute became effective, but instead whether, at the time that the RSSA was\n passed, the Council intended that it apply retroactively and drafted the statute to make that\n intention clear. Cf. Landgraf v. USI Film Products, 511 U.S. 244, 285 (1994) (concluding that\n even if the “retroactive application of a new statute would vindicate its purpose more\n fully. . . [t]hat consideration . . . is not sufficient to rebut the presumption against retroactivity”).\n Nothing in the Committee Report discusses retroactivity or suggests that the Council intended the\n statute to apply retroactively. See generally Committee Report.\n\n\n 8\n\fAppeals has stated that the retroactive application of statutes is particularly disfavored “in cases\n\nbetween private individuals, involving legislation that ‘purely affects the individual rights of two\n\nprivate parties vis a vis one another.’” Id. at 58 (quoting Scholtz P’ship v. D.C. Rental\n\nAccommodations Comm’n, 427 A.2d 905, 915 (D.C. 1981)). The RSSA affects private rights\n\nexclusively by creating a right exercisable by a franchisee to intervene in a private transaction.\n\nD.C. CODE § 36-304.12. Thus, an interpretation of the Act that would lead to a retroactive\n\napplication is disfavored under District of Columbia law.3\n\n In sum, because the RSSA contains no express retroactivity language and is devoid of\n\nany clear implication that it was intended to apply retroactively, and because the Act is the sort\n\nof legislation for which retroactive application is particularly disfavored in the District of\n\nColumbia, the court concludes that the RSSA does not apply retroactively to the transaction at\n\nissue in this case. The court therefore dismisses the Count I of the complaint for failure to state a\n\nclaim for which relief can be granted. Furthermore, because the plaintiff’s civil conspiracy\n\nclaims in Count II are based entirely on the defendants’ alleged violations of the RSSA, see\n\nCompl. ¶¶ 30-31, the court also dismisses Count II for failure to state a claim, see Paul v.\n\nHoward Univ., 754 A.2d 297, 310 n.27 (D.C. 2000) (noting that civil conspiracy is only a means\n\nfor establishing vicarious liability for an underlying unlawful act).\n3\n The plaintiff argues that District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163 (D.C. 2008),\n and Holzsager v. District of Columbia Alcoholic Beverage Control Board, 979 A.2d 52 (D.C.\n 2009) support the retroactive application of the RSSA. See Pl.’s Opp’n to Def. Anacostia’s Mot.\n at 16. Neither case is analogous to the issue before the court. The statute at issue in Beretta\n explicitly applied to claims already in existence at the time the statute became law, and the D.C.\n Court of Appeals merely concluded that the explicitly retroactive statute was constitutional. See\n Beretta U.S.A. Corp., 940 A.2d at 174; see also Langraf, 511 U.S. at 272 (noting that “while the\n constitutional impediments to retroactive civil legislation are now modest, prospectivity remains\n the appropriate default rule” when a statute is not explicitly retroactive). As for Holzsager, it\n concerned the retroactive application of a new procedure for adjudicating existing rights, which\n the District of Columbia Court of Appeals explicitly distinguished from the retroactive\n application of legislation affecting substantive rights. See Holzsager, 979 A.2d at 58. The case\n before the court concerns substantive legislation that is not explicitly retroactive. Accordingly,\n the holdings of Beretta and Holzager are inapposite to the issue before the court.\n\n\n 9\n\f 2. The Plaintiff Has Not Stated a Claim For Unlawful Termination under the PMPA\n\n The plaintiff alleges in Count III of its complaint that the assignment of its franchise\n\nagreement constituted an unlawful termination under the PMPA. Compl. ¶ 34. The plaintiff\n\ncontends that because the assignment of its franchise agreement occurred in violation of state\n\nlaw, the assignment amounted to a constructive termination of its franchise agreement actionable\n\nunder the PMPA. Id. The ExxonMobil defendants argue that because the plaintiff does not\n\nallege that it has lost its right to use the Exxon trademark, its access to Exxon-branded fuel or its\n\nright to occupy the service station premises, it has not stated a claim for unlawful termination of\n\nthe franchise agreement. ExxonMobil Defs.’ Mot. at 5. The plaintiff responds that an\n\nassignment in violation of state law constitutes an alternative independent basis for an unlawful\n\ntermination claim. Pls.’ Opp’n to ExxonMobil Defs.’ Mot. at 15.\n\n The assignment of a franchise agreement does not itself constitute a termination of the\n\nagreement under the PMPA. Beachler v. Amoco Oil Co., 112 F.3d 902, 906 (7th Cir. 1997);\n\nMay-Som Gulf, Inc. v. Chevron U.S.A., 869 F.2d 917, 922 (6th Cir. 1989). Rather, to state a\n\nclaim under the PMPA for unlawful termination of a franchise agreement, the plaintiff must\n\nallege that the “franchisor’s conduct forced an end to the franchisee’s use of the franchisor’s\n\ntrademark, purchase of the franchisor’s fuel, or occupation of the franchisor’s service station.”\n\nMac’s Shell Serv. v. Shell Oil Prods. Co., 130 S. Ct. 1251, 1257-58 (2010) (observing that “a\n\nfranchisee who continues operating a franchise . . . has not had the franchise terminated in either\n\nthe ordinary or technical sense of the word” (internal quotation marks omitted)). To the extent\n\nthat franchisor misconduct violates state law but does not interrupt any of the three statutory\n\ncomponents of the franchise, franchisees are restricted to state law remedies. Id. at 1260. This\n\nrule applies even if the plaintiff is alleging a constructive termination rather than an actual\n\n\n\n\n 10\n\ftermination. Id. at 1257-59. Thus, if a franchisee does not allege an interruption in its use of the\n\nfranchisor’s trademark, its right to purchase branded motor fuel or its right to occupy the station\n\npremises, it does not state a claim for unlawful termination under the PMPA. Fresher v. Shell\n\nOil Co., 846 F.2d 45, 47 (9th Cir. 1988) (per curium).\n\n The plaintiff in this case does not allege that the assignment resulted in an interruption of\n\nits use of the Exxon trademark, supply of Exxon-branded fuel or occupancy of the station\n\npremises. See generally Compl. Accordingly, because the plaintiff does not allege that the\n\nassignment of its franchise agreement interrupted any of the three statutory components of a\n\ngasoline franchise, the court concludes that the complaint does not state a claim for unlawful\n\ntermination under the PMPA and dismisses Count III of the complaint for failure to state a claim\n\nfor which relief can be granted.\n\n 3. The Plaintiff Has Not Stated a Claim for Unlawful Non-Renewal Under the PMPA\n\n The plaintiff alleges in Count IV of its complaint that neither Anacostia nor the\n\nExxonMobil defendants have offered to enter into a new franchise agreement following the\n\nexpiration of the most recent franchise agreement, and that this failure constitutes an unlawful\n\nnon-renewal of its franchise relationship under the PMPA. Compl. ¶ 38. The defendants argue\n\nthat a claim for non-renewal under the PMPA, like a claim for termination, must be based on an\n\nactual interruption in the franchisee’s access to the franchisor’s trademarks, branded gasoline or\n\nstation premises, and that the plaintiff has not alleged such an interruption. ExxonMobil Defs.’\n\nMot. at 9; Def. Anacostia’s Mot. at 21. The plaintiff responds that the franchise agreement\n\nexpired, by its own terms, on August 1, 2009, when the July 31 extension deadline passed\n\nwithout renewal. Pl.’s Opp’n to ExxonMobil Defs.’ Mot. at 22-24; Pl.’s Opp’n to Def.\n\nAnacostia’s Mot. at 20-23. The plaintiff also argues that the fact that it has not been offered a\n\n\n\n\n 11\n\fnew, written franchise agreement shows that the franchise relationship no longer exists, because\n\nDistrict of Columbia law requires that gas station franchise agreements be in writing for terms of\n\nat least one year. Id.\n\n To obtain relief for unlawful non-renewal of a franchise relationship, the plaintiff must\n\nallege “that the franchisor did not reinstate, continue, or renew the franchise relationship once a\n\nfranchise agreement expired.” Mac’s Shell Serv., 130 S. Ct. at 1262 (citing 15 U.S.C. § 2802)\n\n(internal quotation marks omitted). Even if a franchise agreement has expired and the franchisor\n\nhas not signed or offered to sign a new agreement, a franchisee has no claim for non-renewal\n\nunder the PMPA as long as it retains permission to use the franchisor’s trademarks, receive\n\nbranded gasoline and occupy the franchisor’s station. See Dersch Energies, Inc. v. Shell Oil Co.,\n\n314 F.3d 846, 860 (7th Cir. 2002) (concluding that a franchisee alleging non-renewal “must\n\ndemonstrate that at least one of the three essential components of a petroleum franchise has been\n\ndiscontinued”); Davis v. Gulf Oil Corp., 485 A.2d 160, 167 (D.C. 1984) (concluding that non-\n\nrenewal has not occurred even after expiration of the existing franchise agreement “as long as the\n\nfranchisor willingly permits the franchisee to maintain possession of the premises and continues\n\nto supply the franchisee with gasoline pursuant to the agreement”). Furthermore, although D.C.\n\nCode § 36-303.01(a)(10) requires gas station franchise agreements to be in writing and for a\n\nminimum term of one year, this state law requirement does not change the prerequisites for a\n\nsuccessful claim under the PMPA.4 See Davis, 485 A.2d at 167 n.5. (concluding that claims for\n\nbreaches of the D.C. Code’s minimum franchise duration requirement must be brought under\n\n\n\n\n4\n The defendants’ alleged violation of this provision might, of course, support a claim under the\n District of Columbia law itself, but the plaintiff has not pursued such a claim in any of its filings\n before the court. See generally Compl.; Pl.’s Opp’n to ExxonMobil Defs’ Mot.; Pl.’s Opp’n to\n Def. Anacostia’s Mot.\n\n\n 12\n\fD.C. law, not the PMPA); see also Mac’s Shell Serv., 130 S. Ct. at 1260 (declining to interpret\n\nthe PMPA as federalizing violations of state laws regulating franchise agreements).\n\n As noted above, the plaintiff does not allege an interruption in its right to use the Exxon\n\ntrademark, its access to Exxon-branded fuel or its occupancy of the station premises. See supra\n\nPart III.B.2. Accordingly, the court concludes that the complaint does not state a claim for\n\nunlawful non-renewal under the PMPA and dismisses Count IV of the complaint for failure to\n\nstate a claim for which relief can be granted.\n\n 4. The Plaintiff Has Not Stated a Claim for Breach of the Franchise Agreement\n\n The plaintiff alleges in Count V of its complaint that ExxonMobil Oil’s assignment of its\n\nfranchise agreement to Anacostia constituted a breach of contract because the assignment\n\nmaterially altered the plaintiff’s rights under the agreement. Compl. ¶ 41. In their motion, the\n\nExxonMobil defendants argue that the assignment did not amount to a breach of contract because\n\nthe franchise agreement expressly permitted ExxonMobil Oil to assign all or part of its rights or\n\nobligations under the agreement without restriction. ExxonMobil Defs.’ Mot. at 10.\n\n The validity of an assignment of a retail gas station franchise agreement is a matter of\n\nstate law. See 15 U.S.C. § 2806(b) (reserving to the states the power to authorize or prohibit the\n\nassignment of franchise agreements). Under District of Columbia law, contractual rights are\n\npresumptively assignable, and that presumption cannot be overcome “[u]nless a contract contains\n\n‘clear, unambiguous language’ prohibiting an assignment.” Peterson v. D.C. Lottery &\n\nCharitable Games Control Bd., 673 A.2d 664, 667 (D.C. 1996) (quoting Flack v. Laster, 417\n\nA.2d 393, 399 (D.C. 1980)). Far from unambiguously prohibiting assignment, the franchise\n\nagreement at issue in this case expressly permits it, providing that “ExxonMobil may transfer or\n\nassign all or part of its rights or interest in this Agreement . . . without restriction, to any person\n\n\n\n\n 13\n\for entity.” 5 ExxonMobil Defs.’ Mot., Ex. 1 at 31.6 Accordingly, the plain language of the\n\nfranchise agreement indicates that the assignment did not constitute a breach.\n\n The plaintiff argues that the scope of the assignment clause of the franchise agreement is\n\nconstrained by the assignment provision of the District of Columbia’s version of the Uniform\n\nCommercial Code (“UCC”), which provides that “[u]nless otherwise agreed all rights of either\n\nseller or buyer can be assigned except where the assignment would . . . increase materially the\n\nburden or risk imposed on him by his contract, or impair materially his chance of obtaining\n\nreturn performance.” D.C. CODE § 28:2-210(2). The plaintiff contends that the assignment of its\n\nfranchise agreement is invalid under this provision because the assignment has materially\n\nincreased both the burdens imposed upon it and the risk that it will not obtain return\n\nperformance. See Pl.’s Opp’n to ExxonMobil Defs.’ Mot. at 15. Specifically, the plaintiff\n\nalleges that since the assignment, Anacostia has raised the price charged for fuel, demanded\n\npayment in advance instead of cash on delivery and withdrawn excessive funds from its bank\n\naccount. Compl. ¶ 26. The plaintiff also alleges that the assignment to Anacostia imposes a risk\n\nthat Anacostia will force the plaintiff out of business and run the gas station itself. Id. ¶ 22.\n\n\n5\n The plaintiff asks the court to delay determining the meaning of this provision of the franchise\n agreement to allow it to prove that the provision was intended to allow assignment only to other\n refiners and not to a distributor. Pl.’s Opp’n to ExxonMobil Defs.’ Mot. at 17. The express terms\n of the provision exclude such an interpretation, however, by specifying that assignment can occur\n “without restriction, to any person or entity.” ExxonMobil Defs.’ Mot., Ex. 1 at 31; see also\n Lumpkins v. CSL Locksmith, LLC, 911 A.2d 418, 422 (D.C. 2006) (noting that the presence of\n ambiguity in a contract is a question of law and that extrinsic evidence is inadmissible to prove\n the meaning of an unambiguous contractual term).\n6\n Although the franchise agreement was not an exhibit to the complaint, the plaintiff referenced it\n throughout the complaint as a central part of its claims. See, e.g., Compl. ¶¶ 9-11. Accordingly,\n the court can consider the agreement without converting this motion to dismiss into a motion for\n summary judgment. See Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)\n (concluding that courts can consider “documents upon which the plaintiff’s complaint necessarily\n relies even if the document is produced not by the plaintiff but by the defendant in a motion to\n dismiss” (internal quotation marks omitted) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th\n Cir. 1998))).\n\n\n 14\n\f Yet each of the changes that Anacostia has allegedly implemented following the\n\nassignment of its franchise agreement is expressly permitted by the franchise agreement. See\n\nExxonMobil Defs’ Mot., Ex. 1 at 8 (providing that prices are subject to change “at any time and\n\nwithout notice”); id. at 9 (requiring prepayment in any specified manner unless credit is extended\n\nand authorizing the revocation of credit at any time). A gasoline distributor’s decision to assert\n\nits rights under a franchise agreement more fully than the refiner had before the agreement was\n\nassigned does not invalidate the assignment under the UCC. See Beachler, 112 F.3d at 908\n\n(applying an identical Illinois UCC provision and concluding that higher fuel prices and rents\n\nresulting from an assignment of a franchise agreement did not constitute a material increase in\n\nburden because the agreement expressly reserved to the franchisor the right to set prices and\n\nrents); May-Som Gulf, Inc., 869 F.2d at 924 (applying an identical Ohio UCC provision and\n\nconcluding that higher fuel prices and the elimination of a discount program were not increased\n\nburdens from an assignment because they were permitted by the contract); Cedar Brook Serv.\n\nStation v. Chevron U.S.A., Inc., 746 F. Supp. 278, 283 (E.D.N.Y. 1990) (applying an identical\n\nNew York UCC provision and concluding that “changes made by [the assignee] that were within\n\n[the assignor’s] prerogative to make are . . . insufficient to show a burden or impairment flowing\n\nfrom the assignment”).\n\n As for the plaintiff’s fear that Anacostia will force it out of business and run the station\n\nitself, the allegation is too speculative to invalidate the assignment. See May-Som Gulf, Inc., 869\n\nF.2d at 925 (concluding that speculative allegations of future misbehavior are insufficient to\n\ninvalidate the assignment of a gas station franchise agreement). This is true even though the\n\nplaintiff alleges that the assignment has put it in the awkward position of buying its inventory\n\nfrom a competitor, as nothing about that competition constitutes a breach of the franchise\n\n\n\n\n 15\n\fagreement.7 See Ackley v. Gulf Oil Corp., 726 F. Supp. 353, 363 (D. Conn. 1989) (concluding\n\nthat the fact that a distributor, unlike a refiner, was permitted to compete directly with its\n\nfranchisees did not invalidate the assignment of a franchise agreement to a distributor); cf.\n\nMURRAY ON CONTRACTS § 138(A)(2) (4th ed. 2001) (noting that “[t]he fact that the assignee can\n\nbe shown to be persona non grata to the obliger” is irrelevant to the legality of an assignment).\n\n Accordingly, because the franchise agreement expressly permits assignment and because\n\nthe plaintiff’s allegations of increased risks and burdens as a result of the assignment are\n\npermitted by the agreement, the court concludes that the assignment did not breach the franchise\n\nagreement and dismisses Count V of the complaint for failure to state a claim for which relief\n\ncan be granted.\n\n\n\n IV. CONCLUSION\n\n For the foregoing reasons, the court grants the defendants’ motions to dismiss for failure\n\nto state a claim for which relief can be granted. An Order consistent with this Memorandum\n\nOpinion is separately and contemporaneously issued this 20th day of July, 2010.\n\n\n\n RICARDO M. URBINA\n United States District Judge\n\n\n\n7\n To the extent that Anacostia sets prices in bad faith or otherwise performs in bad faith, the\n plaintiff may be able to assert a claim against it for breach of contract under District of Columbia\n law. See D.C. CODE § 28:2-305 (requiring open price terms to be set in good faith); id. § 28:2-\n 103 (requiring performance under contracts for the sale of goods to accord with standards of good\n faith and fair dealing). Similarly, to the extent that Anacostia cuts off any of the three statutory\n elements of PMPA franchise agreement, the plaintiff may be able to bring a PMPA claim against\n it. See 15 U.S.C. § 2805 (authorizing private rights of actions by franchisees against franchisors).\n The claims which the plaintiff asserts in this action, however, relate only to the legality of the\n assignment itself and not to the legality of Anacostia’s behavior following assignment. See\n generally Compl.\n\n\n 16\n\f", "ocr": false, "opinion_id": 2665624 } ]

[ "592 P.2d 1250" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n592 P.2d 1250 (1979)\nGreeta K. BROWN, Appellant,\nv.\nWilliam WOOD et al., Appellees.\nWilliam WOOD et al., Cross-Appellants,\nv.\nGreeta K. BROWN, Cross-Appellee.\nNos. 2564 and 2565.\nSupreme Court of Alaska.\nApril 10, 1979.\nBefore BOOCHEVER, C.J., and RABINOWITZ, CONNOR and MATTHEWS, JJ.\n\n\n*1251 ORDER ON REHEARING\nWe have granted appellant's petition for rehearing.\nIn our opinion in this case, reported in 575 P.2d 760 (Alaska 1978), we relied upon Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), together with Williford v. California, 352 F.2d 474 (9th Cir.1965), for our conclusion that the University of Alaska is not a \"person\" which may be held liable in a suit under 42 U.S.C. § 1983.[1]\nWhile this case was pending on petition for rehearing, that portion of Monroe v. Pape, supra, on which we relied was overruled in Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In view of this, we have concluded that our earlier opinion should be modified so that, in accord with Monell, the University of Alaska can be held liable in a suit under 42 U.S.C. § 1983.\nUpon remand, the Superior Court shall be guided by the principles set forth in Monell, supra, and our earlier opinion, 575 P.2d at 766, shall be considered modified accordingly.\nBURKE, J., not participating.\nNOTES\n[1] That statute provides in pertinent part:\n\nEvery person who, under color of any statute ... custom or usage of any State . . causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ...\n\n", "ocr": false, "opinion_id": 1410959 } ]

[ "96 A.2d 585", "148 Me. 500" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n96 A.2d 585 (1953)\nLESIEUR\nv.\nLAUSIER.\nSupreme Judicial Court of Maine.\nApril 17, 1953.\nN. B. & T. B. Walker, Biddeford, Gendron & McDougal, Sanford, Waterhouse, Spencer & Carroll and Crowley & Nason, Biddeford, for plaintiff.\nLausier & Donahue and Simon Spill, Biddeford, for defendant.\nBefore MERRILL, C. J., and THAXTER, FELLOWS, NULTY, WILLIAMSON, and TIRRELL, JJ.\nWILLIAMSON, Justice.\nOn appeal. This is a petition under the \"contested election\" statute to determine whether the petitioner Arthur J. Lesieur was elected mayor of Biddeford for the current term commencing January 1, 1953 and is entitled to the office. R.S. Ch. 5, Secs. 85-89 inclusive.\nThe petitioner and the respondent were the only candidates for mayor at the election of December 15, 1952. On the basis of the official returns showing 3985 votes for the respondent and 3945 votes for the petitioner, the respondent was declared elected. On December 19th the petitioner commenced the present proceeding alleging in substance that if absentee ballots illegally cast, and ballots defective, invalid and void on their face should be set aside, the petitioner *586 would be found to have a majority of the votes legally cast and thus entitled to the office of mayor. The respondent took the oath of office on January first and has since then been in possession of and has conducted the office of mayor.\nThe Justice of the Superior Court before whom the matter was returnable found that the petitioner received 3986 votes and the respondent 3846 votes. In a judgment rendered on February second the Justice said, in part:\n\"Upon these findings of law and fact, as a whole, it is my judgment that the petitioner has received a majority of the legal votes cast for the office of Mayor in the Biddeford municipal election of December 15, 1952, for the term beginning January 1, 1953, and, for that reason, I hereby declare him to have been duly and legally elected to said office, and to be entitled thereto for the term stated.\n\"The fact that the petitioner is Judge of the Municipal Court does not, in my opinion, disqualify him as a candidate for Mayor. If and when he assumes the latter office, he will vacate the former under the holding in Howard v. Harrington, 114 Me. 443, 96 A. 769 [L.R.A.1917A, 211].\"\nThe respondent duly entered an appeal \"which appeal shall briefly set forth the reasons therefor\", Sec. 87 — in this instance thirty-five in number. It may be noted that the appeal is not to the Law Court but to the Justices of the Supreme Judicial Court who \"shall immediately consider the cause and decide thereon and transmit their decision to the clerk of courts in the county where the suit is pending * * *.\" Sec. 87. On appeal the case is considered de novo.\nThe statutory proceeding is designed to combine the ouster from office of quo warranto with the introduction into office of mandamus. Informative cases on the history and scope of the statute and the proper procedure to be followed are Prince v. Skillin, 71 Me. 361; Bartlett v. McIntire, 108 Me. 161, 79 A. 525; Tremblay v. Murphy, 111 Me. 38, 88 A. 55; Howard v. Harrington, 114 Me. 443, 96 A. 769, L.R.A.1917A, 211.\nIn our view we need consider only the fifth reason of appeal, reading as follows:\n\"5. Because the Petitioner, Arthur J. Lesieur, is not entitled by law to the office of Mayor of the City of Biddeford, as claimed by him for that since the first day of January, 1953, and prior thereto, he has been the legally appointed and qualified Judge of the Municipal Court of the City of Biddeford which office is incompatible with that of Mayor of the City of Biddeford, and since the fifteenth day of December, A.D. 1952, the date of election, and the first day of January, A.D. 1953, the date the Mayor assumes office in the City of Biddeford, and since February 2, 1953, the date of judgment of the Justice of the Superior Court, he has performed and continued to perform the duties of said office whereby he has waived, surrendered, abandoned, terminated and vacated his rights, if any, to the said office of Mayor, the term of which began January 1, 1953, and has thereby disqualified himself.\"\nThe petitioner in challenging the conclusions of the fifth reason does not question the facts. Indeed we take judicial notice that the petitioner has held and exercised the office of judge of the Biddeford Municipal Court as there stated.\nThe decisive question is: Did the petitioner vacate or surrender his claim to the office of mayor by continuing in and exercising the office of judge of the Municipal Court after the time fixed by law for the assumption of the duties of the office of mayor by one elected to said office? The controlling date in this respect is January 1, 1953. Sections 16 and 17 of the city Charter of Biddeford; P. & S.L.1941, Chap. 84, Sections 9 and 10. If the answer is in the affirmative, then the petitioner has no standing under the statute cited above to contest the election of the respondent. The petitioner may have judgment in his favor only if he \"is entitled by law to the office claimed by him * * *.\" Sec. 86. If the claimant is disqualified, clearly he has no right to proceed under the statute.\n*587 There are certain basic principles with respect to incompatible offices which we need no more than mention.\nFirst: The offices of mayor and judge of the municipal court are incompatible. They cannot be held by one person. Howard v. Harrington, supra.\nSecond: The acceptance of a second office vacates the first office, whether or not the person becomes the lawful incumbent of the second office. This is the rule when the offices are under one government. We are not concerned with distinctions arising, for example, when the first is a federal office and the second a state office. Stubbs v. Lee, 64 Me. 195, 18 Am.Rep. 251 (state offices); Bunting v. Willis, 27 Grat. (Va.) 144, 21 Am.Rep. 338 (federal and state offices); 42 Am.Jur. 940, Public Officers, Sec. 77 et seq.; 67 C.J.S., Officers, § 23, p. 133. To put the rule in terms of the present case, the respondent, the declared winner, by qualifying as mayor on January first vacated any state office or claim to state office he may have held incompatible with the office of mayor. This result followed whether or not it should appear that he was legally elected. Shell v. Cousins, 77 Va. 328; Rex v. Hughes, 5 Barn. & C. 886, 108 Eng.Reprint, 329, 8 Dowl. & R. 708; also annotations in 100 A.L.R. 1168, and in 14 Am. and Eng.Anno.Cases 628. Although the title to the second office may be invalid nevertheless its acceptance vacates the first office.\nIn Howard v. Harrington, supra, with Chief Justice Savage speaking for the Court, the principle that acceptance of the second office vacates the first office is carried a step further. There, as here, the petitioner was a candidate for the office of mayor to which the respondent was declared elected. While the case, brought under the \"contested election\" statute, was pending and during the term of office to which Howard claimed to have been elected, he accepted the office of judge of the police court.\nAfter a careful review of the authorities the Court concluded that the office of mayor and of judge of the police court were incompatible, and the Court said 114 Me. on page 449, 96 A. on page 771:\n\"Thence it is that two such offices must be held to be incompatible. And we are all of opinion that when one who has the office of mayor of Rockland, or one who has the right of office, accepts the incompatible office of judge of the police court, he thereby abandons, surrenders, and vacates ipso facto such election, or right of election, as he had to the office of mayor.\n\"Since the petitioner has vacated and surrendered his right to the office of mayor, we think that he cannot maintain this petition. The ultimate purpose of the petition is to oust the respondent, by showing that the petitioner is entitled to the office. And it is only when a petitioner `is entitled by law to the office claimed by him' (R.S. c. 6, § 71), that the justice hearing the case may issue an order to the party unlawfully claiming or holding said office, commanding him to yield up said office to the officer, who has been adjudged to be lawfully entitled thereto (Section 73). The petitioner has now no interest in the proceeding.\"\nIn the Howard case the petitioner, while claiming the present right to be mayor, accepted the incompatible office of judge. Here the petitioner, while claiming the present right to be mayor, has continued to exercise the incompatible office of judge. The Court in the Howard case treated the claim of right to the office as the equivalent of the office itself. Had Howard been the mayor, then of course acceptance of the office of judge would have vacated or forfeited the office of mayor. From this starting point the Court concluded that by taking the office of judge he vacated or surrendered his claim of present right to the office of mayor. The underlying principle to be derived from the Court's reasoning is that eligibility with reference to compatibility of office is determined as of the time of the commencement of the term of office. The phrase \"commencement of the term of office\" where used in this opinion refers to the time fixed by law for assumption *588 of the duties of the office. In the instant case the time is established at the first day on which the mayor-elect is entitled to hold the office. It is not necessary, however, that the time be so firmly fixed. For example, public officers appointed by the governor and council must qualify within thirty days after being commissioned. R.S. Chap. 11, Sec. 8. \"A Memberelect (of the National House of Representatives) may defer until the meeting of the Congress his choice between the seat and an incompatible office.\" 1 Hinds' Precedents of the House of Representatives (1907), page 601, par. 492.\nThe principle is applicable with full force in the instant case. We hold that retention of the first office beyond the commencement of the term of the second office is a declination or forfeiture of the second office. Let us suppose that there had been no contest and that the petitioner had been declared elected but failed to qualify for the office. Would it not necessarily follow that his continuance in an incompatible office pointed directly and conclusively to the forfeiture or declination of any claim of title to the mayoralty?\nThe petitioner is a contestant under the statute seeking to gain the office from a declared winner. Obviously there was no obligation on his part pending the determination of the contest to take the oath of office or to attempt to take possession of the office of mayor on January first. He had commenced a contest and only if successful, and if he then so chose, would he qualify.\nThe position of the declared winner and the contestant, however, are precisely alike in this respect, namely, that each claims that he was the lawfully elected mayor for the stated term. The respondent has the benefit of possession of the office on the basis of the election returns, but the validity of the election was not thereby determined.\nWe have seen that when the second office of incompatible offices is accepted, the first office is thereby vacated. It does not follow, however, that the second office cannot be declined or that claim of title thereto may not be forfeited or abandoned. The acceptance of the second office, when the time comes to assume its duties, is a fact — a widely known fact. The judge has become the mayor and ceased to be the judge. Under like reasoning the continuance of the judge in office is a fact. The judge has chosen to remain the judge and no longer claims title to the office of mayor. In either case the decisive facts are matters of public notice.\nThis reasoning is forcefully stated in a Report of the Committee of Elections to the House of Representatives in the case of General Blair, reading in part:\n\"But this record raises another question which, so far as the committee can learn, has not before arisen, and which it becomes necessary to examine. Mr. Blair was appointed a brigadier general August 7, 1862, and a major general, November 29, 1862, the duties of which latter office he discharged till January 1, 1864, when he tendered his resignation, which was accepted January 12, 1864. On this latter day he was qualified, and took his seat in the House of Representatives. The first regular session of the 38th Congress, fixed by law, commenced on the first Monday of December, 1863. It therefore appears that Mr. Blair held and discharged the duties of the office of major general for more than a month after the commencement of the session fixed by law of the Congress in which, after resigning that office, he subsequently took his seat. Now, if the reasoning already submitted, and the conclusions which the committee have drawn therefrom, be correct, viz., that the acceptance of an office incompatible with one already held must be deemed and treated as the resignation of the former, then does it not follow that the continuance in the discharge of the duties of the former office, after the time at which the law requires the entering upon and discharge of the incompatible duties of the latter, must be deemed and treated as a declination of this latter office? If two offices are tendered at the same time to the same person, and he is at liberty to choose between the two, but either the *589 nature of the offices, or the requirements of the law or Constitution, forbid the acceptance of both, no one will doubt but that, after an election between them is made and the duties of one have been entered upon, it is too late then to take the other. As both cannot be taken, the one is declined in the acceptance of the other. Does the fact that these two offices are tendered at the same time, make any difference in the principle? A man in the discharge of the duties of one office is tendered another, whose duties he is required to enter upon at a certain time, but the functions of both he cannot perform. When the time arrives at which the duties of the latter office commence, he is at liberty to choose. If he takes the latter, the functions of the former, ipso facto, cease as the result of his choice. If he determines to continue to hold the former, does he not of necessity decline the latter, as a like result of that choice? When he accepts one office, the law interprets the act as a surrender of any incompatible office. Shall it not put a like interpretation upon a continuance to discharge the duties of the other? If he may be permitted to keep vacant the one office one month by continuing in the incompatible one during that time, he may two or twelve months, or during its whole term. If these acts are not to be taken as an election on his part; then that election is yet to be made; and what interposes to require it to be made till the day before the term expires, or then? And thus may the people of any district, or any number of districts, be deprived altogether of representation. The committee can not arrive at any conclusion fraught with such results, but are of opinion that, when the time arrives at which the duties of two incompatible offices are by law to be discharged, a man at liberty to choose between the two, as effectually declines one not entered upon, by continuing in the one already held, as he would vacate the former if he did enter upon the latter.\n\"It therefore follows that Mr. Blair, by voluntarily continuing to hold and discharge the duties of the office of major general till January, 1864, declined and disqualified himself for the office of representative, the duties of which, by law, commenced on the first Monday of the December preceding.\" Reports of Committees of the House of Representatives, First Session, 38th Congress, 1863-64, volume 1, Report number 110; McCrary on Elections (Fourth Edition) Pages 258-260.\nAn interesting reference to the Blair case which we have found in a judicial opinion is in United States v. Dietrich, C.C., 126 F. 676, 682, where Judge Van DeVanter, later a Justice of the Supreme Court of the United States, without expressing an opinion on the question, said:\n\"It may be that to have continued in the office of governor beyond the next meeting of the Senate would have operated as a declination of the office of senator (the case of Gen. Blair of Missouri, Reports of Committees 1st Sess., 38th Cong., No. 100 [110], and that of Gov. Hill of New York, Cong.Rec., vol. 23, pt. I, 52d Cong., 2d Sess., pp. 74, 180, seem to be opposing precedents on this question); but to have continued in the office of governor after election as a senator, but not beyond the next meeting of the Senate, would have been permissible under the law, and would not have affected defendant's right to accept the senatorship if the Senate should give its favorable judgment upon his election, credentials, and qualifications.\"\nThe reasoning of the Blair case is appealing and is in accord with the underlying fundamental principles on which Howard v. Harrington, supra, was decided.\nApplying the principle of the Howard case, supra, namely, that the claim of title to office by a contestant is equivalent to the office for purposes of testing incompatibility and the right to proceed under the \"contested election\" statute, we find that the petitioner has declined and disqualified himself as clearly and completely as did General Blair.\n*590 The rule adopted does not strike with undue harshness upon the petitioner. It is true that he must surrender the office held to litigate a claim of title to the office sought. There is a risk involved, but it is a risk he is not compelled to take. Had the petitioner been declared the winner and taken office, he would have vacated the judgeship, and yet in a contest with the respondent he might also have lost the mayoralty. The risk of losing the judgeship without gaining the mayoralty cannot be avoided.\nUnder the \"contested election\" statute the proceeding may be commenced before or at any time during the term of the office at stake. There is no compulsion on the petitioner to start the contest within a given period. On the petitioner's theory the candidate defeated on the returns and occupying an incompatible office can continue to exercise such office and at the same time hold the threat of a contest over the incumbent long after the start of the term. The removal of this candidate from the role of contestant will not determine the validity of the incumbent's election, but it will make the latter's title to that extent more certain.\nIndeed the compelling reason why action in the first office must operate as a surrender of claim of title to the second office is the need of the public to know with certainty who possesses the power and authority to act in public office. Chief Justice Appleton stated the principle in words often quoted:\n\"Where one has two incompatible offices, both cannot be retained. The public has a right to know which is held and which is surrendered. It should not be left to chance, or to the uncertain and fluctuating whim of the officeholder to determine.\" Stubbs v. Lee, supra.\nThe rule that we herein announce, namely, that continuance in and exercise of the duties of an incompatible office after the time fixed by law for the assumption of the duties of a new office by one elected thereto vacates and surrenders a claim to the new office, is the logical and necessary extension of the rule in Stubbs v. Lee, supra. The rule is, to use words of Chief Justice Appleton, \"certain and reliable as well as one indispensable for the protection of the public.\"\nThe petitioner having forfeited any claim to the office of mayor no longer has an interest in this proceeding. Accordingly we need neither consider nor determine whether in fact he was legally elected. When it appears that a petitioner could not serve if elected, the case ends.\nAppeal sustained.\nPetition dismissed with costs.\nTHAXTER, Justice (dissenting).\nI fully agree with the majority opinion to the extent that it holds that the two offices of mayor of the City of Biddeford and judge of the Biddeford Municipal Court are incompatible and cannot both be held by the same person at the same time.\nThe question in this case, involving as it does the purity of the ballot and the right to public office, is a very sensitive one, and I dislike to have to differ with my associates on a matter of this kind.\nThe law on this point has been clearly expressed by this court. The ban against holding incompatible offices whether it be by the constitution, by statute, or by the common law, ordinarily is not directed against one who seeks two incompatible offices but against the exercise of the duties of those incompatible offices. Thus, unless it is expressly forbidden, a person may run in an election for an office incompatible with one which he holds, or be appointed to such an office. Howard v. Harrington, 114 Me. 443, 96 A. 769. It is only when such person either expressly or by implication qualifies for the second that he is held to give up the first. Stubbs v. Lee, 64 Me. 195; 42 Am.Jur. 940. The principle is well stated by Justices Emery, Whitehouse and Peabody of our own court as follows:\n\"2. The constitution (article 4, pt. 3, § 11) does not declare that the holder of an office of profit under the state shall not be elected to the legislature, — shall not be eligible to an election, — but *591 simply declares that he shall not `have a seat in either house during his continuing in such office.' Hence he need not resign his office before his election to the legislature. It is enough if he resigns it at the time of taking his seat in the legislature, and such resignation may only be by taking his oath or seat. The right of the electors to elect whom they will to any elective office is to be construed liberally, as abridged only by the express terms of the constitution or statute, and not by mere implication. Barker v. People, 3 Cow. 686. Thus it has been judicially held that one who is an alien at the time of his election may yet take the office if he be naturalized after his election * * *.\" Opinion of The Justices, 95 Me. 564, 586, 51 A. 224, 233.\nWhat does the majority say here? They concede that these general principles are good law, and that a person may be elected to an office incompatible with one he holds. He is all right until he qualifies or, in the opinion of the majority attempts to do so, for the new office. When however he seeks to enforce the right given him by his election, and to protect the rights of the people who elected him, he finds himself, in the opinion of the majority, unable to do so.\nA person may do everything necessary to attain office, announce his candidacy, file primary nomination papers, conduct his campaign, tell the voters of his qualifications, — everything except to see that the votes are properly counted. When he takes the proceedings permitted by sections 85-90 of Ch. 5 of the Revised Statutes of 1944, protecting the integrity of elections, he is out of luck.\nSuch a doctrine does not to me make sense. The authorities cited to sustain it are not in point. This is particularly so in the case of General Blair. I have read the full record in this case with great care. He for more than a month voluntarily and deliberately failed to qualify for the office of representative to Congress from Missouri while he continued to serve as a major general in the Union army. How could we find a clearer intention than that to abandon the rights given to him by his election to Congress? Here there was no intention by Mr. Lesieur to abandon his rights to his election as mayor of the City of Biddeford at all. Quite the contrary. He asserted those rights forcefully from the first in the manner in which the statute permitted him to do so.\nThis court must do one of two things. Either we must repudiate the doctrine which has always been held in this state, which has been for a long time set forth by some of our greatest judges such as Chief Justices Appleton, Emery and Whitehouse, or we must hold that Mr. Lesieur did not, because of service as judge of the Municipal Court, abandon his claim to have been honestly elected to the office of mayor of the City of Biddeford. There is no alternative. The gist of the opinion in Stubbs v. Lee, supra, certainly substantiates this; and in all the Maine cases which hold that acceptance of one incompatible office is an abandonment of the other we must remember that there was a voluntary election between the two.\nHoward v. Harrington, supra, cited in the majority opinion, is a particularly instructive case. After having been elected mayor of Rockland, Howard was appointed by the governor judge of the police court of Rockland, an incompatible office with that of mayor, and was commissioned as such judge. By qualifying as judge the case holds correctly that he gave up his right to claim that he was elected mayor. How could he have more clearly shown that he waived his claim that he was elected mayor than by qualifying for his judgeship?\nThe majority seem to me to have been more concerned with the chronology of events than with what those events show to have been the intention of the parties.\nBy contesting his right to the office of mayor of the City of Biddeford, Mr. Lesieur would not thereby give up the office of judge of the Biddeford Municipal Court while the mayoralty contest was pending.\nWe must not forget the language of Chief Justice Appleton in Stubbs v. Lee, supra, 64 Me. at page 198, which states the *592 general rule to be \"that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former\". It is not just the \"acceptance\" of an office which vacates another incompatible one, but the \"qualification\" as well as the \"acceptance\" which does so.\nWhat I am trying to say is simply this: \"If the appellee, Mr. Lesieur, had the right to run in the election for the incompatible office of mayor of Biddeford, he had the right to see that the votes were properly and fairly counted in that election when he ran for that incompatible office.\"\nI think that the appeal should be dismissed and that we should proceed in accordance with sections 85-90 of Ch. 5 of the Revised Statutes to determine the result of the election. It is an onerous job to do so but I think such is our duty.\n", "ocr": false, "opinion_id": 1475389 }, { "author_str": "Williamson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWilliamson, J.\nOn appeal. This is a petition under the “contested election” statute to determine whether the petitioner Arthur Lesieur was elected mayor of Biddeford for the current term commencing January 1, 1958 and is entitled to the office. R. S., Chap. 5, Secs. 85-89 inclusive.\nThe petitioner and the respondent were the only candidates for mayor at the election of December 15, 1952. On the basis of the official returns showing 3985 votes for the respondent and 3945 votes for the petitioner, the respondent was declared elected. On December 19th the petitioner commenced the present proceeding alleging in substance that if absentee ballots illegally cast, and ballots defective, invalid and void on their face should be set aside, the petitioner would be found to have a majority of the votes legally cast and thus entitled to the office of mayor. The respondent took the oath of office on January first and has since then been in possession of and has conducted the office of mayor.\nThe Justice of the Superior Court before whom the matter was returnable found that the petitioner received 3986 votes and the respondent 3846 votes. In a judgment rendered on February second the justice said, in part:\n“Upon these findings of law and fact, as a whole it is my judgment that the petitioner has received a majority of the legal votes cast for the office of Mayor in the Biddeford municipal election of December 15, 1952, for the term beginning January 1, 1953, and, for that reason, I hereby declare him to have been duly and legally elected to said office, and to be entitled thereto for the term stated.\n“The fact that the petitioner is Judge of the Municipal Court does not, in my opinion, disqualify him as a candidate for Mayor. If and when he *502assumes the latter office, he will vacate the former under the holding in Howard vs. Harrington, 114 Me. 443, 96 A. 769.”\nThe respondent duly entered an appeal “which appeal shall briefly set forth the reasons therefor” (Sec. 87) — in this instance thirty-five in number. It may be noted that the appeal is not to the Law Court but to the Justices of the Supreme Judicial Court who “shall immediately consider the cause and decide thereon and transmit their decision to the clerk of courts in the county where the suit is pending .. .” (Sec. 87) On appeal the case is considered de novo.\nThe statutory proceeding is designed to combine the ouster from office of quo warranto with the introduction into office of mandamus. Informative cases on the history and scope of the statute and the proper procedure to be followed are Prince v. Skillin, 71 Me. 361; Bartlett v. McIntire, 108 Me. 161, 79 A. 525; Tremblay v. Murphy, 111 Me. 38, 88 A. 55; Howard v. Harrington, 114 Me. 443, 96 A. 769, L. R. A. 1917 A. 211.\nIn our view we need consider only the fifth reason of appeal, reading as follows:\n“5. Because the Petitioner, Arthur J. Lesieur, is not entitled by law to the office of Mayor of the City of Biddeford, as claimed by him for that since the first day of January, 1953, and prior thereto, he has been the legally appointed and qualified Judge of the Municipal Court of the City of Biddeford which office is incompatible with that of Mayor of the City of Biddeford, and since the fifteenth day of December, A. D. 1952, the date of election, and the first day of January, A. D. 1953, the date the Mayor assumes office in the City of Biddeford, and since February 2, 1953, the date of judgment of the Justice of the Superior Court, he has performed and continued to perform the duties of said office whereby he has waived, surrendered, *503abandoned, terminated and vacated his rights, if any, to the said office of Mayor, the term of which began January 1, 1953, and has thereby disqualified himself.”\nThe petitioner in challenging the conclusions of the fifth reason does not question the facts. Indeed we take judicial notice that the petitioner has held and exercised the office of judge of the Biddeford Municipal Court as there stated.\nThe decisive question is: Did the petitioner vacate or surrender his claim to the office of mayor by continuing in and exercising the office of judge of the Municipal Court after the time fixed by law for the assumption of the duties of the office of mayor by one elected to said office? The controlling date in this respect is January 1, 1953. Sections 16 and 17 of the city Charter of Biddeford; P. & S. L., 1941, Chap. 84, Sections 9 and 10. If the answer is in the affirmative, then the petitioner has no standing under the statute cited above to contest the election of the respondent. The petitioner may have judgment in his favor only if he “is entitled by law to the office claimed by him . . .” (Sec. 86) If the claimant is disqualified, clearly he has no right to proceed under the statute.\nThere are certain basic principles with respect to incompatible offices which we need no more than mention.\nFirst: The offices of mayor and judge of the municipal court are incompatible. They cannot be held by one person. Howard v. Harrington, supra.\nSecond: The acceptance of a second office vacates the first office, whether or not the person becomes the lawful incumbent of the second office. This is the rule when the offices are under one government. We are not concerned with distinctions arising, for example, when the first is a federal office and the second a state office. Stubbs v. Lee, 64 *504Me. 195, 18 Am. Rep. 251 (state offices); Bunting v. Willis, 27 Gratt. (Va.) 144, 21 Am. Rep. 338 (federal and state offices) ; 42 Am. Jur. 940, Public Officers, Sec. 77 et seq; 67 C. J. S. 133, Officers, Sec. 23. To put the rule in terms of the present case, the respondent, the declared winner, by qualifying as mayor on January first vacated any state office or claim to state office he may have held incompatible with the office of mayor. This result followed whether or not it should appear that he was legally elected. Shell v. Cousins, 77 Va. 328; Rex v. Hughes, 5 Barn. & C. 886, 108 Eng. Reprint, 329, 8 Dowl. & R. 708; also annotations in 100 A. L. R. 1168, and in 14 Am. and Eng. Anno. Cases 628. Although the title to the second office may be invalid nevertheless its acceptance vacates the first office.\nIn Howard v. Harrington, supra, with Chief Justice Savage speaking for the court, the principle that acceptance of the second office vacates the first office is carried a step further. There, as here, the petitioner was a candidate for the office of mayor to which the respondent was declared elected. While the case, brought under the “contested election” statute, was pending and during the term of office to which Howard claimed to have been elected, he accepted the office of judge of the police court.\nAfter a careful review of the authorities the court concluded that the office of mayor and of judge of the police court were incompatible, and the court said on page 449:\n“Thence it is that two such offices must be held to be incompatible. And we are all of opinion that when one who has the office of mayor of Rockland, or one who has the right of office,' accepts the incompatible office of Judge of the police court, he thereby abandons, surrenders and vacates ipso facto, such election, or right of election, as he had to the office of mayor.\n*505“Since the petitioner has vacated and surrendered his right to the office of mayor, we think that he cannot maintain this petition. The ultimate purpose of the petition is to oust the respondent, by showing that the petitioner is entitled to the office. And it is only when a petitioner ‘is entitled by law to the office claimed by him,’ R. S., ch. 6, sect. 71, that the Justice hearing the case may issue an order to the party unlawfully claiming or holding said office, commanding him to yield up said office to the officer who has been adjudged to be lawfully entitled thereto. Sect. 73. The petitioner has now no interest in the proceeding.”\nIn the Howard case the petitioner, while claiming the present right to be mayor, accepted the incompatible office of judge. Here the petitioner, while claiming the present right to be mayor, has continued to exercise the incompatible office of judge. The court in the Howard case treated the claim of right to the office as the equivalent of the office itself. Had Howard been the mayor, then of course acceptance of the office of judge would have vacated or forfeited the office of mayor. From this starting point the court concluded that by taking the office of judge he vacated or surrendered his claim of present right to the office of mayor. The underlying principle to be derived from the court’s reasoning is that eligibility with reference to compatibility of office is determined as of the time of the commencement of the term of office. The phrase “commencement of the term of office” where used in this opinion refers to the time fixed by law for assumption of the duties of the office. In the instant case the time is established at the first day on which the mayor-elect is entitled to hold the office. It is not necessary, however, that the time be so firmly fixed. For example, public officers appointed by the governor and council must qualify within thirty days after being commissioned. R. S., Chap. 11, Sec. 8. “A Member-elect (of the National House of Representatives) may defer until the meeting of the Con*506gress his choice between the seat and an incompatible office.” 1 Hinds’ Precedents of the House of Representatives (1907), page 601, par. 492.\nThe principle is applicable with full force in the instant case. We hold that retention of the first office beyond the commencement of the term of the second office is a declination or forfeiture of the second office. Let us suppose that there had been no contest and that the petitioner had been declared elected but failed to qualify for the office. Would it not necessarily follow that his continuance in an incompatible office pointed directly and conclusively to the forfeiture or declination of any claim of title to the mayoralty?\nThe petitioner is a contestant under the statute seeking to gain the office from a declared winner. Obviously there was no obligation on his part pending the determination of the contest to take the oath of office or to attempt to take possession of the office of mayor on January first. He had commenced a contest and only if successful, and if he then so chose, would he qualify.\nThe position of the declared winner and the contestant, however, are precisely alike in this respect, namely, that each claims that he was the lawfully elected mayor for the stated term. The respondent has the benefit of possession of the office on the basis of the election returns, but the validity of the election was not thereby determined.\nWe have seen that when the second office of incompatible offices is accepted, the first office is thereby vacated. It does not follow, however, that the second office cannot be declined or that claim of title thereto may not be forfeited or abandoned. The acceptance of the second office, when the time comes to assume its duties, is a fact — a widely known fact. The judge has become the mayor and ceased to be the judge. Under like reasoning the continuance of the judge *507in office is a fact. The judge has chosen to remain the judge and no longer claims title to the office of mayor. In either case the decisive facts are matters of public notice.\nThis reasoning is forcefully stated in a Report of the Committee of Elections to the House of Representatives in the case of General Blair, reading in part:\n“But this record raises another question which, so far as the committee can learn, has not before arisen, and which it becomes necessary to examine. Mr. Blair was appointed a brigadier general August 7, 1862, and a major general, November 29, 1862, the duties of which latter office he discharged till January 1, 1864, when he tendered his resignation, which was accepted January 12, 1864. On this latter day he was qualified, and took his seat in the House of Representatives. The first regular session of the 38th Congress, fixed by law, commenced on the first Monday of December, 1863. It therefore appears that Mr. Blair held and discharged the duties of the office of major general for more than a month after the commencement of the session fixed by law of the Congress in which, after resigning that office, he subsequently took his seat. Now, if the reasoning already submitted, and the conclusions which the committee have drawn therefrom, be correct, viz., that the acceptance of an office incompatible with one already held must be deemed and treated as the resignation of the former, then does it not follow that the continuance in the discharge of the duties of the former office, after the time at which the law requires the entering upon and discharge of the incompatible duties of the latter, must be deemed and treated as a declination of this latter office? If two offices are tendered at the same time to the same person, and he is at liberty to choose between the two, but either the nature of the offices, or the requirements of the law or Constitution, forbid the acceptance of both, no one will doubt but that, after an election between them is made and the *508duties of one have been entered upon, it is too late then to take the other. As both cannot be taken, the one is declined in the acceptance of the other. Does the fact that these two offices are tendered at the same time, make any difference in the principle ? A man in the discharge of the duties of one office is tendered another, whose duties he is required to enter upon at a certain time, but the functions of both he cannot perform. When the time arrives at which the duties of the latter office commence, he is at liberty to choose. If he takes the latter, the functions of the former, ipso facto, cease as the result of his choice. If he determines to continue to hold the former, does he not of necessity decline the latter, as a like result of that choice? When he accepts one office, the law interprets the act as a surrender of any incompatible office. Shall it not put a like interpretation upon a continuance to discharge the duties of the other? If he may be permitted to keep vacant the one office one month by continuing in the incompatible one during that time, he may two or twelve months, or during its whole term. If these acts are not to be taken as an election on his part; then that election is yet to be made; and what interposes to require it to be made till the day before the term expires, or then ? And thus may the people of any district, or any number of districts, be deprived altogether of representation. The committee can not arrive at any conclusion fraught with such results, but are of opinion that, when the time arrives at which the duties of two incompatible offices are by law to be discharged, a man at liberty to choose between the two, as effectually declines one not entered upon, by continuing in the one already held, as he would vacate the former if he did enter upon the latter.\n“It therefore follows that Mr. Blair, by voluntarily continuing to hold and discharge the duties of the office of major general till January, 1864, declined and disqualified himself for the office of representative, the duties of which, by law, com*509menced on the first Monday of the December preceding.”\nReports of Committees of the House of Representatives, First Session, 38th Congress, 1863-64, volume 1, Report number 110; McCrary on Elections (Fourth Edition) Pages 258-260.\nAn interesting reference to the Blair case which we have found in a judicial opinion is in United States v. Dietrich, 126 Fed. 676, 682, where Judge Van DeVanter, later a Justice of the Supreme Court of the United States, without expressing an opinion on the question, said:\n“It may be that to have continued in the office of governor beyond the next meeting of the Senate would have operated as a declination of the office of senator (the case of Gen. Blair of Missouri, Reports of Committees 1st Sess., 38th Cong., No. 100 (110) and that of Gov. Hill of New York, Cong. Rec., vol. 23, pt. 1, 52d Cong., 2d Sess., pp. 74, 180, seem to be opposing precedents on this question) ; but to have continued in the office of governor after election as a senator, but not beyond the next meeting of the Senate, would have been permissible under the law, and would not have affected defendant’s right to accept the senatorship if the Senate should give its favorable judgment upon his election, credentials, and qualifications.”\nThe reasoning of the Blair case is appealing and is in accord with the underlying fundamental principals on which Howard v. Harrington, supra, was decided.\nApplying the principle of the Howard case, supra, namely, that the claim of title to office by a contestant is equivalent to the office for purposes of testing incompatibility and the right to proceed under the “contested election” statute, we find that the petitioner has declined and disqualified himself as clearly and completely as did General Blair.\n*510The rule adopted does not strike with undue harshness upon the petitioner. It is true that he must surrender the office held to litigate a claim of title to the office sought. There is a risk involved, but it is a risk he is not compelled to take. Had the petitioner been declared the winner and taken office, he would have vacated the judgeship, and yet in a contest with the respondent he might also have lost the mayoralty. The risk of losing the judgeship without gaining the mayoralty cannot be avoided.\nUnder the “contested election” statute the proceeding may be commenced before or at any time during the term of the office at stake. There is no compulsion on the petitioner to start the contest within a given period. On the petitioner’s theory the candidate defeated on the returns and occupying an incompatible office can continue to exercise such office and at the same time hold the threat of a contest over the incumbent long after the start of the term. The removal of this candidate from the role of contestant will not determine the validity of the incumbent’s election, but it will make the latter’s title to that extent more certain.\nIndeed the compelling reason why action in the first office must operate as a surrender of claim of title to the second office is the need of the public to know with certainty who possesses the power and authority'to act in public office. Chief Justice Appleton stated the principle in words often quoted:\n“Where one has two incompatible offices, both cannot be retained. The public has a right to know which is held and which is surrendered. It should not be left to chance, or to the uncertain and fluctuating whim of the office-holder to determine.” Stubbs v. Lee, supra.\n*511The rule that we herein announce, namely, that continuance in and exercise of the duties of an incompatible office after the time fixed by law for the assumption of the duties of a new office by one elected thereto vacates and surrenders a claim to the new office, is the logical and necessary extension of the rule in Stubbs v. Lee, supra. The rule is, to use words of Chief Justice Appleton, “certain and reliable as well as one indispensable for the protection of the public.”\nThe petitioner having forfeited any claim to the office of mayor no longer has an interest in this proceeding. Accordingly we need neither consider nor determine whether in fact he was legally elected. When it appears that a petitioner could not serve if elected, the case ends.\n\nAppeal sustained.\n\n\nPetition dismissed with costs.\n\n", "ocr": false, "opinion_id": 9636721 }, { "author_str": "Thaxter", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDissenting Opinion.\nThaxter, J.\nI fully agree with the majority opinion to the extent that it holds that the two offices of mayor of the City of Biddeford and judge of the Biddeford Municipal Court are incompatible and cannot both be held by the same person at the same time.\nThe question in this case, involving as it does the purity of the ballot and the right to public office, is a very sensitive one, and I dislike to have to differ with my associates on a matter of this kind.\nThe law on this point has been clearly expressed by this court. The ban against holding incompatible offices whether it be by the constitution, by statute, or by the common law, ordinarily is not directed against one who seeks two incompatible offices but against the exercise of the duties of those incompatible offices. Thus, unless it is expressly forbidden, *512a person may run in an election for an office incompatible with one which he holds, or be appointed to such an office. Howard v. Harrington, 114 Me. 443. It is only when such person either expressly or by implication qualifies for the second that he is held to give up the first. Stubbs v. Lee, 64 Me. 195; 42 Am. Jur. 940. The principle is well stated by Justices Emery, Whitehouse and Peabody of our own court as follows:\n“II. The Constitution, Art. 4, Sec. 11, does not declare that the holder of an office of profit under the state shall not be elected to the legislature,— shall not be eligible to an election, — but simply declares that he shall not ‘have a seat in either house during his continuing in such office.’ Hence he need not resign his office before his election to the legislature. It is enough if he resigns it at the time of taking his seat in the legislature, and such resignation may only be by taking his oath or seat. The right of the electors to elect whom they will to any elective office is to be construed liberally, as abridged only by the express terms of the constitution or statute and not by mere implication. Barker v. People, 3 Cowen, 688. Thus, it has been judicially held that one who is an alien at the time of his election may yet take the office if he be naturalized after his election. .....” Opinion of The Justices, 95 Me. 564, 586.\nWhat does the majority say here? They concede that these general principles are good law, and that a person may be elected to an office incompatible with one he holds. He is all right until he qualifies or, in the opinion of the majority attempts to do so, for the new office. When however he seeks to enforce the right given him by his election, and to protect the rights of the people who elected him, he finds himself, in the opinion of the majority, unable to do so.\nA person may do everything necessary to attain office, announce his candidacy, file primary nomination papers, con*513duct his campaign, tell the voters of his qualifications,— everything except to see that the votes are properly counted. When he takes the proceedings permitted by sections 85-90 of Chap. 5 of the Revised Statutes of 1944, protecting the integrity of elections, he is out of luck.\nSuch a doctrine does not to me make sense. The authorities cited to sustain it are not in point. This is particularly so in the case of General Blair. I have read the full record in this case with great care. He for more than a month voluntarily and deliberately failed to qualify for the office of representative to Congress from Missouri while he continued to serve as a major general in the Union army. How could we find a clearer intention than that to abandon the rights given to him by his election to Congress ? Here there was no intention by Mr. Lesieur to abandon his rights to his election as mayor of the City of Biddeford at all. Quite the contrary. He asserted those rights forcefully from the first in the manner in which the statute permitted him to do so.\nThis court must do one of two things. Either we must repudiate the doctrine which has always been held in this state, which has been for a long time set forth by some of our greatest judges such as Chief Justices Appleton, Emery and Whitehouse, or we must hold that Mr. Lesieur did not, because of service as judge of the Municipal Court, abandon his claim to have been honestly elected to the office of mayor of the City of Biddeford. There is no alternative. The gist of the opinion in Stubbs v. Lee, supra, certainly substantiates this; and in all the Maine cases which hold that acceptance of one incompatible office is an abandonment of the other we must remember that there was a voluntary election between the two.\nHoward v. Harrington, supra, cited in the majority opinion, is a particularly instructive case. After having been elected mayor of Rockland, Howard was appointed by *514the governor judge of the police court of Rockland, an incompatible office with that of mayor, and was commissioned as such judge. By qualifying as judge the case holds correctly that he gave up his right to claim that he was elected mayor. How could he have more clearly shown that he waived his claim that he was elected mayor than by qualifying for his judgeship?\nThe majority seem to me to have been more concerned with the chronology of events than with what those events show to have been the intention of the parties.\nBy contesting his right to the office of mayor of the City of Biddeford, Mr. Lesieur would not thereby give up the office of judge of the Biddeford Municipal Court while the mayoralty contest was pending.\nWe must not forget the language of Chief Justice Appleton in Stubbs v. Lee, supra, at page 198, which states the general rule to be “that the acceptance of and qualification for an office incompatible with one then held is a resignation of the former.” It is not just the “acceptance” of an office which vacates another incompatible one, but the “qualification” as well as the “acceptance” which does so.\nWhat I am trying to say is simply this: “If the appellee, Mr. Lesieur, had the right to run in the election for the incompatible office of mayor of Biddeford, he had the right to see that the votes were properly and fairly counted in that election when he ran for that incompatible office.”\nI think that the appeal should be dismissed and that we should proceed in accordance with Sections 85-90 of Chap. 5 of the Revised Statutes to determine the result of the election. It is an onerous job to do so but I think such is our duty.\nSidney St. F. Thaxter\n", "ocr": false, "opinion_id": 9636722 } ]

[ "641 F.3d 957" ]

[ { "author_str": "Loken", "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.ca8.uscourts.gov/opndir/11/06/102310P.pdf", "author_id": null, "opinion_text": "\n641 F.3d 957 (2011)\nIrene Neypes BIRDSONG, Petitioner,\nv.\nEric H. HOLDER, Jr., Attorney General of the United States, Respondent.\nNo. 10-2310.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted: March 15, 2011.\nFiled: June 13, 2011.\nTimothy E. Wichmer, argued, St. Louis, MO, for petitioner.\nDara Smith, argued, Jennifer Paisner Williams, OIL, USDOJ, on the brief, Washington, DC, for respondent.\nBefore LOKEN and COLLOTON, Circuit Judges, and NELSON,[*] District Judge.\nLOKEN, Circuit Judge.\nIrene Birdsong, a citizen of the Philippines, was admitted into the United States in December 2001 under a \"K-1\" nonimmigrant visa, a visa granted to an alien solely \"to conclude a valid marriage with [the alien's U.S. citizen fiancé(e)] within ninety days after admission.\" 8 U.S.C. § 1101(a)(15)(K)(i). A K-1 visa may only be issued after approval of a petition by the alien's fiancé(e). See 8 U.S.C. § 1184(d). Ms. Birdsong remained in this country but did not marry the U.S. citizen *958 who petitioned on her behalf. In April 2003, she married another U.S. citizen, her current husband, who filed an I-130 Petition for Alien Relative on her behalf. The Petition was approved in October 2004. Ms. Birdsong then filed an I-485 Application to Register Permanent Residence or Adjust Status. The Application was denied, and the Department of Homeland Security commenced removal proceedings on the ground that Ms. Birdsong failed to comply with the terms of her K-1 visa. She conceded removability, see 8 U.S.C. § 1227(a)(1)(B), and requested adjustment of status under 8 U.S.C. § 1255(i) based on a good faith marriage to her current husband.\nAfter receiving briefs from the parties, the Immigration Judge (IJ) entered a final order of removal, concluding that Ms. Birdsong is barred from seeking adjustment of status under 8 U.S.C. § 1255[1] by subsection (d). The Board of Immigration Appeals (BIA) affirmed. Ms. Birdsong petitions for judicial review of this final agency action. See 8 U.S.C. § 1252(a)(1). We have jurisdiction to review questions of statutory interpretation. 8 U.S.C. § 1252(a)(2)(B)(i), (D). The agency's grant of voluntary departure did not deprive us of jurisdiction over the BIA's alternative final order of removal. Foti v. INS, 375 U.S. 217, 219 n. 1, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). We conclude that the BIA's decision was consistent with agency regulations that reasonably interpret the relevant statutes and therefore deny the petition for review.\n\nI.\nThis appeal raises an issue of statutory construction—determining the proper relationship between 8 U.S.C. § 1255(d) and (i). Section 1255 is a lengthy statute prescribing the terms upon which various classes of aliens may adjust their status to that of lawful permanent residents of this country. To frame the issue before us, we quote the relevant provisions of § 1255:\n(a) The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion. . . if [she meets criteria not here at issue].\n(c) . . . [S]ubsection (a) of this section shall not be applicable to . . . (8) any alien . . . who has otherwise violated the terms of a nonimmigrant visa.\n(d) . . . The Attorney General may not adjust, under subsection (a) of this section, the status of a nonimmigrant alien described in section 1101(a)(15)(K) of this title except to that of an alien lawfully admitted to the United States on a conditional basis . . . as a result of the marriage of the nonimmigrant . . . to the citizen who filed the petition to accord that alien's nonimmigrant status under section 1101(a)(15)(K). . . .\n(i)(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States [who meets criteria not here at issue] may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.[2]\nBy its plain text, § 1255(d) appears to bar an alien such as Ms. Birdsong who was admitted under a K-1 nonimmigrant visa from adjusting status under § 1255 because she did not marry her petitioning *959 fiancé. The first two circuits to consider this issue looked no further, concluding that, \"[o]n its face, subsection (d) prohibits an alien who arrived on the K-1 fiancé[e] visa from adjusting [her] status on any basis whatever save for the marriage to the K-1 visa sponsor,\" and that \"subsection (i) does not afford any relief from the provisions of subsection (d).\" Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir. 2007); accord Kalal v. Gonzales, 402 F.3d 948, 951-52 (9th Cir.2005).\nMs. Birdsong argues, however, that § 1255(d) by its terms only bars adjustment under § 1255(a), whereas § 1255(i) creates a freestanding basis by which a K-1 nonimmigrant visa holder may pursue adjustment of status under § 1255. Because failure to marry the petitioning K-1 fiancé put her in a class of aliens described in § 1255(c)(8), the argument continues, Ms. Birdsong is eligible for adjustment of status by the plain language of § 1255(i), and we must remand for a determination of whether the Attorney General will grant this discretionary relief. Because the Fourth Circuit and the Ninth Circuit erred in ignoring the plain language of § 1255(i), Ms. Birdsong would have us reject their reading of § 1255(d).\nWe are thus confronted with conflicting plain-language interpretations of these two statutes. The Tenth Circuit confronted the same conflict in Zhang v. Holder, 375 Fed.Appx. 879, 884-86 (10th Cir.2010) (unpublished), cert. denied, ___ U.S. ___, 131 S.Ct. 1468, 179 L.Ed.2d 299 (2011). After carefully surveying the decisions in Kalal and Markovski and the contrary interpretation of § 1255(i) urged by Ms. Birdsong in this case, the court was \"unable to conclude that the statutory language is clear and unambiguous with respect to whether a K-1 visa holder is restricted from obtaining adjustment of status under § 1255 except as provided in subsection (d).\" Id. at 885. Applying the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the court rejected both plain-language approaches and upheld the denial of adjustment of status under § 1255(i) because the Attorney General's regulations that \"permit a K-1 visa holder to apply for adjustment of status only based upon marriage to the petitioning United States citizen fiancé(e)\" are reasonable and a permissible construction of the statute. Zhang, 375 Fed.Appx. at 885.\nOn appeal, ignoring the decision in Zhang altogether, Ms. Birdsong concedes that she is ineligible for adjustment of status under 8 C.F.R. § 1245.1(c)(6) but argues that § 1255(i) is \"clear on its face\" and a regulation may not contradict the plain language of the statute. We agree with the general proposition but disagree that the plain language of § 1255(i) answers the question before us. In considering whether a statute is clear and unambiguous under Chevron, the question is whether § 1255(i) \"speak[s] with the precision necessary to say definitively whether it applies\" to Ms. Birdsong's application for adjustment of status. United States v. Eurodif S.A., 555 U.S. 305, 129 S.Ct. 878, 888, 172 L.Ed.2d 679 (2009). \"[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.\" Chevron, 467 U.S. at 843, 104 S.Ct. 2778. The Court has also noted \"that judicial deference to the Executive Branch is especially appropriate in the immigration context\" because of its impact on foreign relations. INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); see 8 U.S.C. §§ 1103(a)(1), 1184(a).\nWe find it helpful to view the plain-language issue in historical perspective. *960 Subsection 1255(d) was enacted as part of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 2(e), 100 Stat. 3537. That statute eliminated the streamlined, nearly automatic adjustment-of-status procedure for K-1 visa holders under 8 U.S.C. § 1184(d). Instead, to combat marriage fraud, Congress \"incorporated the alien fiancé(e)'s adjustment of status into the statutory scheme\" under § 1255. Matter of Sesay, 25 I. & N. Dec. 431, 437 (BIA 2011). Under § 1255(d), unlike the prior regime, the K-1 visa holder must establish that she deserves a discretionary grant of adjustment of status by the Attorney General under § 1255(a), \"can only adjust on the basis of the marriage to the fiancé(e) petitioner,\" must marry the petitioner within 90 days of arrival, and must establish the marriage is bona fide during a two-year conditional adjustment period. Id. at 442.\nSubsection 1255(i), on the other hand, was added to the statute in 1994 as part of an annual Department of State appropriations bill. As explained by the Department of Justice in promulgating a contemporaneous interim regulation:\nThe requirements of [8 U.S.C. § 1255(a) and (c)] were established to discourage intending immigrants from moving to the United States before becoming fully eligible for permanent residence and bypassing the orderly immigrant visa issuance process abroad. These requirements have caused many persons who are in the United States to be unable to adjust status in this country. . . . By virtue of the requirements of [8 U.S.C. § 1255(a) and (c)], these persons were putatively required to leave the United States and United States consuls abroad have been burdened with immigrant visa issuance that would not otherwise have been necessary.\n. . . [Subsection 1255(i)] temporarily lifts many of the restrictions on adjustment of status under section [1255] on applications filed on or after October 1, 1994, although it does not affect persons adjusting under other sections of the law. . . .\n* * * * *\n[Subsection 1255(i)] also does not waive several other grounds of ineligibility for adjustment of status under [section 1255]. . . . An applicant who was admitted to the United States as a K-1 fiancé(e) but did not marry the United States citizen who filed the petition . . . is also barred from adjusting status under [section 1255].\n\nAdjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 59 Fed. Reg. 51091, 51092-93, 1994 WL 543334 (Oct. 7, 1994) (emphasis added). Consistent with this explanation, the interim rule modified 8 C.F.R. § 245.1(c)(6) to provide, as the final regulations now provide:\n(c) Ineligible aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of lawful permanent resident alien under [8 U.S.C. § 1255]:\n* * * * *\n(6) Any alien admitted to the United States as a nonimmigrant defined in section [1101(a)(15)(K)], unless:\n(i) In the case of a K-1 [fiancé(e)] . . . the alien is applying for adjustment of status based upon the marriage of the K-1 [fiancé(e)] which was contracted within 90 days of entry with the United States citizen who filed a petition on behalf of the K-1 [fiancé(e)].\n8 C.F.R. §§ 245.1(c)(6)(i), 1245.1(c)(6)(i).\nThis chronological perspective, plus the fact that § 1255(a) is the lead and dominant subsection and § 1255(i) was later added for a limited purpose, support the conclusion of the Ninth Circuit and the *961 Fourth Circuit that § 1255(d) plainly bars Ms. Birdsong from adjusting her status. Though Ms. Birdsong arguably comes within the purview of § 1255(i) because she falls within the catchall class of aliens who have \"otherwise violated the terms of a nonimmigrant visa,\" § 1255(c)(8), she falls squarely within the far more specific limitation in § 1255(d). \"[A] basic principle of statutory construction [is] that a specific statute . . . controls over a general provision . . . particularly when the two are interrelated and closely positioned.\" HCSC-Laundry v. United States, 450 U.S. 1, 6, 101 S.Ct. 836, 67 L.Ed.2d 1 (1981). Nonetheless, it would have been easy for Congress in 1994 to resolve all doubt by adding a cross-reference to subsection (i) in subsection (d), or, conversely, by adding a cross reference to subsection (d) in subsection (i) had it intended to make Ms. Birdsong eligible for § 1255(i) relief without regard to § 1255(d). But Congress added neither clarification. Instead, it was silent on the precise question before us. In these circumstances, we are inclined to agree with the Tenth Circuit that the two subsections are ambiguous for purposes of the first part of the Chevron analysis.\nTurning therefore to the second part of the Chevron analysis, we agree with the Tenth Circuit that 8 C.F.R. §§ 245.1(c)(6)(i) and 1245.1(c)(6)(i) are a permissible construction of § 1255 that is entitled to Chevron deference. These provisions, which bar Ms. Birdsong as a K-1 visa holder from adjusting her status on any basis other than her marriage to the U.S. citizen who petitioned on her behalf, are consistent with the \"carefully crafted scheme that Congress created for the purpose of avoiding marriage fraud.\" Kalal, 402 F.3d at 952. Of course, Congress could have permitted some K-1 visa holders to avoid its antifraud restrictions by adjusting their status under § 1255(i) after entry, but the Attorney General reasonably concluded that § 1255(i) did not reflect an intent to do so.\n\nII.\nMs. Birdsong further argues that the IJ violated her right to due process by failing to hold a hearing on the merits of her discretionary adjustment-of-status application. This contention is without merit. After giving counsel for Ms. Birdsong ample opportunity to brief this issue of statutory construction, the IJ and the BIA determined, correctly in our view, that she had conceded removability and was ineligible for adjustment of status as a matter of law. No further hearing was needed. Had we reversed the BIA's determination of ineligibility, we would have remanded for whatever hearing on the discretionary adjustment-of-status issues might then have been appropriate.\nWe deny the petition for review.\nNOTES\n[*] The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota, sitting by designation.\n[1] § 1255 is commonly referred to as § 245 of the Immigration and Nationality Act. We will use the more widely available U.S. Code citations in this opinion.\n[2] Though amendments to § 1255(i) have limited the group of aliens who are eligible for this relief, see 8 U.S.C. § 1255(i)(B)-(C); 8 C.F.R. § 1245.10, Ms. Birdsong's eligibility is not at issue.\n\n", "ocr": false, "opinion_id": 218678 } ]

[ "486 F. Supp. 504" ]

[ { "author_str": "Foreman", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1093, "opinion_text": "\n486 F.Supp. 504 (1980)\nRalph LIGHTFOOT et al., Plaintiffs,\nv.\nDaniel WALKER et al., Defendants.\nCiv. Nos. 73-238E, 78-2095.\nUnited States District Court, S. D. Illinois.\nFebruary 19, 1980.\nAs Amended March 18, 1980.\n*505 Harvey Grossman, Land of Lincoln Legal Assistance Foundation, Inc., East St. Louis, Ill., Pat Flynn, Legal Services, Greenville, S.C., for plaintiffs.\nThomas Crooks, John Prusik, Asst. Attys. Gen., Victor Yipp, Ill. Dept. of Corrections, Chicago, Ill., for defendants.\n\nORDER\nFOREMAN, Chief Judge:\nThis is a civil rights action, brought under 42 U.S.C. § 1983, for the benefit of all prisoners at the Menard Correctional Center in Menard, Illinois (hereinafter referred to as Menard). Jurisdiction is predicated upon 28 U.S.C. § 1343(3), 1343(4) and 2201 et seq. The Court also invoked its pendent jurisdiction on October 18, 1976, to hear claims concerning inadequate health care, in violation of the Constitution, laws and regulations of the State of Illinois. The plaintiff class are seeking declaratory and injunctive relief, to stop state prison officials from maintaining an inadequate health care system for the prisoners at Menard.\nThis claim was originally filed on October 2, 1973, on behalf of thirty-eight (38) named black prisoners confined to segregation at the prison since May 1, 1973. One of the conditions challenged in this original complaint was the inadequacy of health care provided in segregation. A temporary restraining order entered by consent of the parties on December 4, 1973, provided, in part, for regular exercise and proper health care.\nOn July 14, 1975, in a first amended complaint, the plaintiffs expanded their proposed class to include all inmates in segregation. This group, certified as a class on *506 March 5, 1976, claimed violations of both federal constitutional and state law in a number of areas of institutional life, including a claim that a systematic denial of adequate health care services existed at Menard. Upon plaintiffs' motion, the Court appointed a panel of impartial medical experts pursuant to Rule 706 of the Federal Rules of Evidence.[1] The basic function and duties of that panel were stated as follows:\nThe medical panel shall assist the Court in determining questions of essential medical care as required by the United States Constitution and good medical practice as required by the Illinois Department of Corrections Administrative Regulations. The panel shall organize, direct and conduct a comprehensive health services survey to determine the adequacy and propriety of health care services presently being provided to the plaintiff class by the defendants.[2]\nThe Court was informed by letter on February 27, 1976, that the three physician appointees, Dr. Richard Della Penna, Dr. Lambert King and Dr. Ronald Shansky, were found acceptable by defendants.\nOn October 18, 1976, the Court, sua sponte, ordered a separate trial on the claim of denials of essential medical care as alleged in paragraphs 43-45 of the First Amended Complaint. The Court's medical panel filed its first report on November 18, 1976, and stated its conclusion that there is a systematic denial of acceptable medical care to the residents of the entire institution, not solely to the then existing plaintiff class of the prisoners in the segregation unit.\nIn light of the Medical Panel's finding that health care deficiencies were affecting the general population, as well as segregation, and there being no objection from the defendants, the Court on December 23, 1976, granted plaintiffs' motion to expand the plaintiff class to all inmates incarcerated at the institution for purposes of declaratory and injunctive relief as to those issues involving federal constitutional and pendent state claims of denials of medical care as stated in paragraphs 43 through 45 of the First Amended Complaint.\nA non-jury trial of the health care issues for purposes of declaratory and injunctive relief commenced August 29, 1977, and continued for thirty-one (31) days of trial ending on November 17, 1977. During the trial, the Court's medical panel reinspected the institution pursuant to the request of defendants (Defendants' Motion for a Reinspection mailed for filing on June 22, 1977) and submitted their second request, \"Report of Medical Panel Concerning Reinspection of Menard Correctional Center on September 20, 1977.\"\nPlaintiffs called three experts and introduced 223 exhibits, while defendants called six experts and introduced 89 exhibits. Two members of the Court's panel of medical experts testified, and the panel's two reports were introduced into evidence.\nThe following is a brief summary of the qualifications of the Court's panel:\n1. Lambert N. King, M.D., Ph.D., is a board-certified physician in internal medicine who served as Medical Director of Cermak Memorial Hospital for the Cook County Department of Corrections from November 1974 to May of 1977, member of the staff at Cook County Hospital, consultant to the National Health Service to plan model jail health services, and has written and *507 lectured extensively on correctional medical care. He visited Menard on three separate occasions over four days, performed a detailed chart review of about 50 randomly-selected medical records, examined a large number of other medical records, and interviewed many Menard residents and staff.\n2. Ronald M. Shansky, M.D., is a physician who is a member of the staff at Cook County Hospital, the Metropolitan Correctional Center of Chicago. Dr. Shansky also has a master's degree in public health and teaches public health at the University of Illinois. Dr. Shansky visited Menard on three separate occasions, over four days, performed a detailed chart review of approximately 30 randomly-selected medical records, examined other medical records, and interviewed many Menard residents and staff.\n3. Richard Della Penna, M.D., is a physician who previously was the medical director of a program operated by Montefiore Hospital which provided health care services to inmates confined in institutions of the New York City Department of Corrections. Dr. Della Penna has written in the area of correctional health care and served as Chairperson of the Task Force which developed Standards for Health Services in Correctional Institutions, an official report of the American Public Health Association. Dr. Della Penna visited Menard on two occasions, conferred with staff and residents, inspected the facility and reviewed medical records.\nThe plaintiffs' three experts were:\n1. Whitney Addington, a physician certified in the area of internal medicine. He has written extensively in the area of pulmonary medicine with a particular emphasis on tuberculosis and asthma.\n2. Frank Rundle, a certified psychiatrist, who has been repeatedly qualified as an expert in federal courts and is currently an advisor to Judge Robert Ward of the Southern District of New York. He examined medical and psychiatric files during a four day visit to Menard in April of 1977.\n3. Theodore J. Gordon, the Chief of the Bureau of Occupational Health and Institutional Hygiene for the Environmental Health Administration. He is certified by the Department of Agriculture as a food inspector and by HEW as a health care facility surveyor. He examined Menard in a survey on August 26, 1977.\nThe defendants' expert witnesses were:\n1. Jay K. Harness, M.D., a board-certified surgeon who is Director of the Office of Health Care for the Michigan Department of Corrections and a consultant on correctional health care.\n2. Kenneth Babcock, M.D., a physician who was formerly the Director of the Joint Commission on Accreditation of Hospitals from 1954-1964, and now is a consultant on hospital-medical problems of correctional institutions. Dr. Babcock visited Menard in 1973, and again in January and October, 1977.\n3. John Grenfell, Ed.D., a professor at the Rehabilitation Institute at Southern Illinois University at Carbondale and a consultant on correctional staff training and treatment. His deposition testimony was admitted into evidence.\n4. Patricia A. Nolan, M.D., M.P.H., a physician and diplomat of public health. She was formerly a public health physician in the New York City Department of Public Health from 1974 to 1976, and presently is employed by the Illinois Department of Public Health in the Office of Health Facilities and Quality of Care. She visited Menard in April and August of 1977.\n5. Dennis Jurczak, M.D., a psychiatrist who is the Assistant Director of the Office of Health Care in the Michigan Department of Corrections. He formerly was employed as a psychiatrist for the Bureau of Prisons, U.S. Naval hospitals and two state departments of corrections. He visited Menard on one occasion prior to testifying.\n6. Norman Freeman, a doctoral candidate in environmental health at the University of Michigan. For the past four years, he has been employed as an environmental health sanitarian with the Illinois Department *508 of Health. He has been an environmental health sanitarian for almost twenty years. Mr. Freeman inspected Menard during a four day study in January of 1977, and in a re-evaluation in August of 1977.\nAfter the conclusion of the trial, the Court allowed plaintiffs to file a post-trial memorandum on November 1, 1978, containing proposed findings of fact and conclusions of law. The defendants also filed their own findings and conclusions in a memorandum filed on January 22, 1979. The plaintiffs were then granted leave to file a reply brief with supplemental findings of fact on July 9, 1979. Finally, on October 5, 1979, the Court heard final oral arguments summarizing these post-trial briefs. The Court has carefully considered all the voluminous exhibits, briefs, memoranda and evidence presented in reaching its decision. Before stating its findings of fact and conclusions of law, the Court will briefly discuss the current status of the law.\nInitially, the Court must deal with the problem of the pendent state claim brought by plaintiffs. As previously noted, the Court's federal jurisdiction is based upon 28 U.S.C. §§ 1343(3), 1343(4) and 2201 et seq. The Court's pendent jurisdiction was raised by plaintiffs who claim defendants failed to follow the laws and regulations of the State of Illinois. Specifically, plaintiffs alleged that defendants have not complied with Ch. 38 § 1003-7-2(3), Ill.Rev.Stat. which provides:\n(c) All institutions and facilities of the Department shall provide every committed person with a wholesome and nutritional diet at regularly scheduled hours, drinking water, clothing adequate for the season, bedding, soap and towels and medical and dental care. (Emphasis added)\nIn conjunction with this statute, the Illinois Department of Corrections has promulgated Administrative Regulation 836 which provides for medical services of a level and quality commensurate with good medical practice. In Anderson v. Redman, 429 F.Supp. 1105 (D.Del.1977), the Court considered the issue of overcrowding in a prison setting under both the Constitution and the regulations promulgated by the Department of Corrections. In its decision, the Court stated that to the extent the IRM (Inmate Reference Manual) contains mandatory language, it has the same effect as a statute. Anderson, supra at 1119. The state law issue, therefore, is whether the medical services provided the inmates at Menard are of a level and quality commensurate with good medical practice.\nAs a general principle of constitutional law, a court should avoid a constitutional issue if the statutory claim is dispositive. See, e. g., Hagans v. Lavine, 415 U.S. 528, 543-48, 94 S.Ct. 1372, 1382-85, 39 L.Ed.2d 577 (1974). The Court in Anderson, supra at 1118 considered whether the resultant conditions violated state law and never found the need to address the constitutional issue. However, the constitutional decision avoidance issue is not iron clad. See, Hagans, supra at 546, 94 S.Ct. at 1383; Siler v. Louisville & Nashville Railroad Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909). Nevertheless, if a court departs from that principle, it must have important reasons.\nThe Court has determined that for the following reasons this Court may address the constitutional issues brought by plaintiffs, although the application of state regulation could dispose of this case:\na. Although individuals are nominally defendants in this case, the relief must necessarily come from state sources. A decision predicated solely on state law may give the state the impetus to change that law and thereby perhaps, circumvent the relief, particularly where that relief is prospective and will be awarded to an unfavored, disenfranchised class of persons.\nb. The constitutional principles emerging from this class type of litigation are still developing. If the state should, in fact, change their laws, it will be left without guidance as to the minimally acceptable standards necessary to comply with the Constitution. In view of the lengthy litigation in this case and the important rights at *509 stake, it would appear preferable to avoid another case based upon the same factual circumstances.\nc. The real \"pendent\" claim in this case arises from an administrative regulation. In the Redman case, the regulations were promulgated as part of a settlement agreement in a prior class suit. Thus, the state could not repeal or change those regulations. In the present case, no such restrictions exist, nor is this Court persuaded that the defendants could not easily withdraw the present regulation.\nThus, the Court concludes that it may properly rule upon the constitutional issues present in this case, despite the presence of state claims.\nTurning next to the subject matter, the Court notes that the plaintiffs are challenging the defendants' administration and servicing of the health care system at Menard. While federal courts have traditionally resisted attempts to become involved with the daily administrative problems in prisons, \"a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution.\" Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). The Court feels that a policy of deference to state and prison officials is not required under the circumstances, particularly as prison disciplinary or security procedures are not at issue. Todaro v. Ward, infra at 54, Newman v. Alabama, 503 F.2d 1320, 1329-30 (5th Cir. 1974). Therefore, despite the possible intrusion into prison policy, the Court may examine the constitutional issues presented in this case.\nThe Supreme Court, in 1976, dictated the test for determining the constitutionality of a prison's medical care and services. Under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed. 251, a standard of \"deliberate indifference to a prisoner's serious illness or injury\" has been used to determine if an unconstitutional denial of medical services exist within a prison. Several courts since Estelle have further elaborated on the meaning of \"deliberate indifference.\" In Todaro v. Ward, 431 F.Supp. 1129, 1133 (S.D.N.Y.1977), that court reviewed the various standards. The court concluded that \"to prove an individual claim of unconstitutional denial of medical care it is necessary to show either denied or unreasonably delayed access to a physician for diagnosis or treatment of a discomfort-causing ailment, or failure to provide prescribed treatment.\" See, Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970); Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966); Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974); Fitzke v. Shappell, 468 F.2d 1072 (6th Cir. 1972).\nIn Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977), the Second Circuit further enumerated the proper procedure when the whole health care system is constitutionally challenged. That court noted that:\nwhile a single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of mere negligence, repeated examples of such treatment bespeak a deliberate indifference by prison authorities to the agony engendered by haphazard and ill-conceived procedures. Indeed, it is well-settled in this circuit that \"a series of incidents closely related in time . . . may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners.\" Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974). See Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed. 102 (1975). When systematic deficiencies in staffing, facilities or procedures make unnecessary suffering inevitable, a court will not hesitate to use its injunctive powers. See Bishop v. Stoneman, supra; Newman v. Alabama, supra, 503 F.2d at 1328-30. See also Cruz v. Ward, 558 F.2d 658, 662 (2d Cir. 1977).\nUsing the above standard, this Court will now determine from the facts whether the medical practices and procedures at Menard were constitutionally infirm. Pursuant to Rule 52, the Court makes the following findings of fact and conclusions of law.\n\n\n*510 Findings of Fact\n\n\nENVIRONMENTAL HEALTH CONDITIONS\n\nA. Living Units\n1. Menard, built in 1878, is a maximum security facility and also serves as the Reception and Classification Center for felon sentences from Central and Southern Illinois. At the time of trial (and still present today) a maximum of 2,650 inmates resided at Menard. In order to accommodate these prisoners double celling occurred in the South and East Cellhouses, the Reception and Classification (R&C) Units and Galleries 5 and 7 of the Segregation Unit. This doubling of inmates in cells resulted in allowing only 18 to 32 square feet of space for each resident.\n2. The East and South Cellhouses allow only 64 and 56 square feet, respectively for the two inmates doubled in each cell.\n3. The Honor Farm dormitory is also overcrowded, providing only 35 square feet per inmate.\n4. The cell space in the Reception and Classification Unit is inadequate to double cell new inmates.\n5. These newly admitted inmates should be kept separated from the rest of the prison population until the initial medical screening procedures are completed. In light of the small space in each cell, this screening procedure should be completed within seven (7) days.\n6. During a period from April 13, 1976 to June 11, 1977, the delay from admission to a physical examination ranged from 13 to 162 days. Many inmates had been transferred into the general population prior to their examinations. The defendants have failed to properly administer the screening process required in Reception and Classification, thus endangering the general population with the risk of disease.\n7. The defendants have failed to provide the essential elements for basic personal hygiene to inmates in segregation. There was no hot water provided in the segregation cells until early 1977.\n8. In addition, the number of shower heads are grossly inadequate. The inmates are allowed only one shower per week, which is not medically acceptable.\n9. The shower rooms in segregation are improperly cleaned. Mildew and the risk of fungal infections are a result of this lack of cleanliness.\n10. The general housekeeping level and sanitation conditions in segregation have always been extremely poor and remained inadequate at the time of trial. Open sewage, standing water, flies, roaches, dried food on galleries, adherent dirt and food residues and decaying garbage are all persistent problems found by defendants themselves, the Court's panel and Mr. Gordon on inspections of the unit. There is no credible evidence of any effective routine housekeeping or maintenance in segregation.\n11. Photographs taken pursuant to Court orders in 1975 show numerous cells with toilets missing and uncapped waste lines. DPH found numerous uncapped waste lines still present in a January 1977 inspection.\n12. The conditions in segregation pose a serious health problem. Standing water in the service tunnels creates a breeding place for bacteria and insects. The accumulated dust and dirt could cause an asthmatic to have significant bronchospasms.\n13. Defendants' sanitation inspections and provision of some inadequate cleaning supplies to inmates have failed to eliminate the unsanitary conditions in segregation. An effective uniform maintenance program is needed.\n14. The sanitation of mattresses, mattress covers, sheets and pillow cases in segregation has been continuously inadequate throughout the pendency of this suit. The mattresses are dirty, torn, badly stained. Linen is old and filthy and infrequently changed. The sanitation of beds and linen is grossly deficient and incompatible with the Department's own regulations. The unclean bedding creates an increased risk of infection for inmates in the segregation unit. Bacteria can grow in such bedding.\n*511 15. Severe crowding in the fifth and seventh galleries of voluntary segregation also results in inadequate space per inmate, and contributes to the increased chance of infection and disease.\n16. The Department's own Bureau of Detention Standards found lighting inadequate as early as March 1976. Light-meter readings in segregation cells at the time of trial in August 1977, found only 5 foot-candles of light in the cells. This amount of light is grossly inadequate for even brief reading.\n17. The ventilation system in the segregation unit at Menard cannot provide adequate ventilation to the unit.\n18. Inmates in segregation are only outside their cells for a maximum of one shower and one hour of exercise per week. This is not a medically acceptable frequency or duration of showers or exercise; it promotes deterioration of inmates physically.\n19. The State of Illinois recognizes the right of inmates to a daily exercise period of one hour by statute. The Department denies this right to all inmates in the segregation unit without rationale.\n20. Defendants frequently deny even the weekly exercise period to segregation inmates and have deprived some inmates of recreation for months at a time.\n21. A number of medical problems arise from the lack of exercise. Men who are kept sedentary tend to develop musculoskeletal pain and tension. Lack of exercise is definitely related to cardiovascular morbidity (heart attacks). Lack of exercise makes epileptics more prone to seizure and makes it impossible for diabetics to balance their caloric intake against physical activity. Inmates with all of these chronic health conditions have been confined in the segregation unit at Menard.\n22. Defendants' failures to provide adequate outdoor exercise and frequent showers to segregation inmates is not based on any sound medical or penological rationale. The only reason showers and exercise are not provided more often is a shortage of staff in the unit.\n23. There is a direct relationship between lack of exercise and increased demand for medical services. Lack of exercise also leads to increased stress and is inimical to an inmate's mental well-being.\n24. The segregation examination room has standing water and is not presently equipped to be used for its stated purpose.\n25. The control cells comprised the last five cells at the northern end of 2 gallery in the segregation unit. The individual cells are the same size as regular segregation cells. They were, however, cut-off from the rest of the gallery by a concrete block enclosure with a solid door which was normally kept locked. From the time of their inception until at least March 23, 1976, the only visibility into these cells was through plexiglass enclosures. These enclosures allowed for no ventilation into the control cell area, and very little light. Several fires were started in the control cells in March 1976, which melted the plastic. The medical technicians stated that this made visibility into the cells extremely limited.\n26. Individuals with a chronic health problem, including epileptics, diabetics, asthmatics, hypertensives and cardiovascular problems, as well as psychiatrically disturbed inmates, were placed in control cells. The problems associated with placing such inmates in the abysmal conditions in these types of cells would not be cured by having a physician pre-screen their placement. The problem was lack of observability and access, for correctional officers only checked the cells infrequently. No correctional personnel were normally stationed on the back of 2 gallery. The medical technicians did not normally check the control cells on their sick call in segregation. Without observation, an inmate could become ill and die within minutes in these cells.\n27. Inmates in the `box' were permitted only the barest of necessities; a mattress on the floor, a blanket and the clothes they were wearing. They were given no personal property, and even after hot water was provided to the rest of segregation, it was not provided in the control cells. This lack *512 of an essential element of personal hygiene is another clear violation of DOC's own regulations. (A.R. 804, p. 6, par. 6) There was no evidence of any cleaning supplies or brooms with which inmates could clean their cells anywhere.\n28. Although the defendants have discontinued use of the control cells, and have destroyed the concrete enclosure, the Court finds that the previous use of these units must be condemned. The placement of an inmate, particularly one who is emotionally disturbed or chronically ill, is particularly alarming as no physician even visited these cells, despite recommendations since 1973.\n29. The Court further finds that while the defendants now assert that the issue of the control cells is moot due to the removal of the concrete wall surrounding these cells during the middle of trial, this Court received no credible assurances that the cells would not be returned to their former use after judgment is rendered.\n\nB. Medical Unit\n30. There are significant deficiencies in the environmental conditions within the building housing medical services at Menard. As early as February 1975, the housekeeping was noted as minimal and the unit needed a good going over with soap and water. The sanitation and housekeeping was still unacceptable in some areas of the building in August 1977. There is no separation of the clean and soiled linen which violates Hill-Burton standards for ambulatory care facilities, a problem noted by the Department of Public Health in their January 1977 sanitation inspection and by Mr. Gordon in August 1977.\n31. The surgical suite at the institution is full of critical deficiencies from an environmental health standpoint. Instruments have been improperly sterilized, thus creating a risk of contamination. The suite was cluttered and had an accumulation of dust. There is no routine cleaning plan or written housekeeping procedure, although they should be a standard feature for a medical facility.\n32. Two potentially dangerous defects in the surgical area are the operating room floor and the flammable gases stored just outside the room. The operating room with nonconductive flooring and tanks of flammable cyclopropane gas in the room and nitrous oxide outside the room presented the risk of explosion and fire.\n33. The lack of a clinical sink with knee or foot action faucets in the doctors' examining room is another critical defect. There is a danger of cross contamination from sink valves when the doctor washes his hands between examinations of patients.\n34. There are two rooms used in the medical unit to \"isolate\" individuals with suspected or confirmed communicable diseases. These rooms are inadequate for the purposes of isolation. They are not designed as \"ventilation rooms.\" There is very little air flow in the rooms and no method for exhausting this air out of the unit, which is necessary for the control of infections.\n35. Defendants' procedures manual was a copy of a hospital's manual not adapted or specifically written for Menard. This must be done in order to be of use to the professional staff at Menard.\n36. The Court recognizes that the construction of a new medical facility which is projected for completion in the Spring of 1980, will greatly alleviate future health problems in the medical unit. However, the use of the old facility during the litigation, and the resulting harm, does not render this issue moot.\n\nC. Food Services\n37. The inadequacies in the food storage preparation and delivery are well-documented over a long period of time and reflect a continuing pattern of neglect by the Department. A Department of Public Health (DPH) food services inspection in 1972 recommended closer supervision of inmates in all dishwashing and food service areas, replacement of some utensils and equipment and indicated the need for three-compartment sinks for adequate sanitation of items.\n*513 38. No follow-up inspection was ever conducted by DPH. The January, 1977, DPH inspection conducted as a result of this lawsuit found these same problems in the food services four and one-half years later. In April and July, 1976, the floors in the kitchen were generally filthy, toilets next to the showers off the kitchen area were heavily contaminated with feces, and garbage was uncovered. Vats and trays of food in the walk-in refrigerators were left uncovered and separation of used and unused food was poor. These unhygienic conditions pose a real health hazard at the institution. In spite of this, there was no apparent effort made to correct these dismal conditions or to implement proper sanitary policies and procedures.\n39. At the time of trial in August, 1977, over a year after the panel's report and after two inspections by the state Department of Public Health pursuant to the panel's recommendation, serious public health problems still exist in food services areas at Menard. The ventilation in the kitchen is insufficient to remove odors and excess heat. There are plumbing problems in the cooking area — the lack of vacuum breakers and submerged inlets which could result in back seepage of sewage into the potable water supply, also noted by the Department of Public Health in their inspection eight months earlier. There is no backflow prevention device on the dishwasher. These deficiencies may result in the spread of congestive diseases if the waste water is drawn into the drinking water system. After washing, the cups and plates were being replaced on the same racks they were on when dirty. The improper handling and sanitation of the eating and drinking utensils provides the opportunity for transmission of trench mouth and other diseases.\n40. The handwashing and shower facilities for the kitchen workers is inadequate. The shower room has no ventilation; obnoxious odors from the toilet were present on an inspection at the time of trial. The floors of the shower room are porous and there was standing water. This is conducive to bacterial growth which causes athlete's foot and other skin diseases. The lack of basic facilities for personal hygiene is significant; a large majority of outbreaks of food-borne disease are associated with people not washing their hands properly and then contaminating food.\n41. The bakery area was still being used at the time of the panel's first inspection; the presence of insects was common in this section of food services. Rat droppings were present between the oven and the wall in the bakery and mouse droppings in the yeast storage room at the time of trial.\n42. These are critical public health problems, and the insect and rodent control must be upgraded in these areas. The deep fat fryers are quite unsanitary, and there was no fire extinguishing equipment around them. Indeed there is no fire safety in the entire food services area and there is a present danger to both inmates and employees if there is a fire in that area of the institution.\n43. The inmates dispensing the diet trays have no training or instruction in differentiating between the number of calories on different diets. The workers in the food services should receive training in food-handling techniques and proper hygiene, as well as in their duties in an institution serving meals to a population the size of Menard. At present, there is no periodic check of inmates who handle food at Menard.\n\nD. Defendants' Failure to Remedy Conditions\n44. The abysmal conditions throughout the housing units, segregation, reception and classification, the medical unit and food services have continued to exist for years and, indeed, as the panel indicated on their reinspection, have worsened in some respects at Menard. This state of affairs is even more disturbing to the Court in light of the numerous instances where conditions and problems have been brought to the attention of the administration, both at the institution and at the department level. Defendants have also violated their own statutory authority and regulations.\n*514 45. The Illinois Department of Public Health has an institutional inspection program component, presently administered by Mr. Freeman. This section of DPH did a survey of Menard as early as 1972 but performed no other inspections until 1977 when their surveys were in response to this lawsuit. This latter survey is a considerable variance to the Court's panel's reinspection, conducted only two weeks later. The questionable impartiality and lack of enforcement powers of the Department of Public Health limits this department's usefulness in correcting deficiencies at Menard.\n\nHEALTH CARE SERVICES\n\nA. On Site Physician Services\n46. The level of physician services provided at Menard has been and is significantly less than any recognized standards, as well as the number of medical hours determined to be minimally required by the Court's panel.\n47. The number of scheduled weekly hours of primary medical care provided by physicians and the inmate populations to be served are as follows:\n\n\n Population\n Scheduled (Beginning\n Period Hours/Week and Ending)\n 5/73 to 9/74 25 hours (Dr. Wham) XXXX-XXXX\n 9/74 to 4/75 4½ hours (Dr. Vidal) 1357-1515\n 4/75 to 8/75 8 hours (Drs. Vidal & 1515-1776\n Zemlyn, includes surgical\n coverage)\n 8/75 to 3/76 2½ hours (Dr. Zemlyn, 1776-1958\n includes surgical coverage)\n 3/76 to 9/76 8 hours (Dr. Khan) 1958-2131\n 9/76 to 3/77 3 hours (Dr. Vidal) 2131-2380\n 3/77 to 5/77 43 hours (Drs. Vidal & 2400 +\n Lendrum)\n 5/77 to 8/77 80 hours (Drs. Lendrum 2500-2600\n and Tabilon)\n 8/77 to 10/77 86 hours (Drs. Lendrum, 2500-2600\n Tabilon, Platt)\n 11/77 to end 46 hours (Drs. Lendrum 2500-2600\n of trial and Platt)\n\n48. Actual hours of on-site primary medical coverage were often less than those scheduled. Physicians assigned to perform sick-call frequently did not appear or left prior to completion of sick-call due to outside medical responsibilities. Defendants' own records document the fact that this practice went on for many years.\n49. The members of the Court's panel in their first report of October, 1976, found that the physician services were inadequate to meet minimal standards. Dr. King testified that the then-existing coverage of 8 weekly primary care physician hours was \"grossly substandard.\" The panel concluded that at that time, for a Menard population of 2000 men, a minimum of 100 hours of on-site physician coverage was necessary.[3] This conclusion was based on a systematic assessment of the medical services provided to plaintiffs. Moreover, the adequacy of this level of physician services was dependent upon the employment of a sufficient number of physician extenders.[4]\n50. At the time of the medical panel's reinspection on September 20, 1977, the number of hours of physician coverage remained inadequate to provide minimally acceptable medical services to the increased inmate population of 2500-2600 persons.[5]\n51. During testimony, Dr. King advised that approximately 125 hours of primary care coverage with an adequate number of physician extenders, would be necessary to provide adequate physician services for a Menard population of 2600.\n52. The panel's medical audit on reinspection revealed numerous deficiencies in the manner in which the physicians performed, including: intake physical examinations; lack of continuity of care; and physicians' notes absent or unacceptably cursory. The panel found that practically all of the deficiencies could be corrected if there was adequate physician time.[6]\n*515 53. Due to inadequate physician coverage, the panel, during its first inspection, noted that numerous medical tasks were performed by unlicensed and unqualified medical technicians, nurses or inmates. This included prescribing and administering controlled medication without authorization from or consultation with a physician. This also includes administering prescription medicine through the use of a set of standing orders. This formal delegation of authority to unqualified personnel was an extremely dangerous and questionable medical practice.\n54. During the panel's second inspection, the use of standing orders and the prescribing of medicine by unlicensed personnel no longer occurred. However, the Court recognizes that the mere fact this practice existed indicates a poor past medical coverage and supervision.\n\nB. Chief Medical Officer\n55. The continued failure of the defendants to secure the services of a chief medical officer at Menard and the necessary medical direction which that individual should provide, has obstructed the developing of a minimally adequate health care delivery system at the institution.\n56. Dr. Wham was the Chief Medical Officer at Menard until September 1974; however, his recommendations for designing and upgrading a health care system at Menard were not implemented by departmental level defendants.\n57. In their first report the panel found that none of the three part-time physicians actually functioned as the chief medical officer who should be responsible for the direction and in-service training of ancillary medical staff. The panel stressed the need for a physician to become involved, on-site, in a total reorganization of the health care delivery system; and not simply putting in hours of direct patient services.\n58. Although during part of the trial Dr. Tabilon served as chief medical officer, he did not assume any supervisory or advisory role, due to the backlog of needs in direct patient care.\n59. As a result of inadequate medical direction at the institution, numerous conditions and practices occurred which are unsound medical procedures. Those problems include:\n(a) There is no effective medical direction or review of the sick call screening system which controls access to the physician. Written screening protocols for use by ancillary personnel must be made in order to properly effectuate efficient medical screening of inmates.\n(b) No physical examination and screening of new health service personnel have been implemented by the end of trial. These procedures are essential to guard against the transmission of disease and to properly determine the new employee's ability to work in this type of environment.\n(c) The medical supervisor failed to establish in-service education for the ancillary staff, a systematic medical audit or a peer review. All these programs are necessary to safeguard the quality of the medical services which are provided to the inmates. The peer review will help the physicians to accept responsibilities for their medical decisions and instructions. All these programs are necessary to maintain adequate medical services to the plaintiffs.\n60. The panel stressed throughout both reports and at trial that stable physician coverage was a critical element of an adequate system. The record at trial establishes quite clearly that erratic and insufficient physician services have existed during the four year term of this litigation. Dr. King testified that since the involvement of the panel in March, 1976, the pattern has been one of being unable to recruit adequate numbers of staff to meet the needs of the population.\n61. The panel found the past policy of offering full pay for half-time work to be a discouragement to full-time commitments, and that the salary for doctors was markedly low. Increased physician salaries were *516 only obtained due to the effects of this lawsuit, as was the abandonment of the double salary provisions.\n62. Departmental-level health care personnel provided limited assistance to Menard in the area of physician recruitment and then, only after the panel's first report.\n63. Budgeting for physician services has been chaotic and unrealistic. A pattern of insufficient initial requests and subsequent unnecessary budget cuts in physician services occurred in fiscal years 1977 and 1978.\n64. Although defendants have stated in post trial arguments that sufficient physician coverage presently exists at Menard, the Court finds that a pattern of inadequate coverage and insufficient recruitment occurred prior to and during the trial. This resulted in the dangerous practices by the medical staff to compensate for insufficient physician coverage.\n\nC. Ancillary Personnel\n65. The vast majority of medical services provided to residents at Menard are delivered by correctional medical technicians (CMTs) and nursing staff. This personnel administers prescription medications and is responsible for emergency care when a physician is not present at the institution. CMTs were also responsible for referring residents with medical problems to a physician at sick call and were required to perform laboratory procedures, inhalation therapy, administer blood and IV fluids and physical therapy treatments. CMTs also prescribed and administered drugs and treatment pursuant to the standing orders in effect at Menard until February, 1977. The Court's experts concluded that this level of responsibility far exceeds the CMT's training.\n66. From May, 1973 to April, 1975, there were never more than four CMTs at Menard to serve a population of 1500. Defendants were aware that this staffing was inadequate, having been advised in 1973 that at least two medical technicians and additional nurses were needed. However, it was over two years before the defendants increased their staffing to the levels recommended in 1973.\n67. The nine CMTs employed at Menard at the time of the panel's first inspections in the summer of 1976 were grossly overburdened and markedly understaffed. The panel concluded that for sick-call screening (triage) alone, minimum staffing for CMTs at Menard requires employment on the day shift (7 A.M. — 3 P.M.) of at least one medical technician for every 200 inmates.\n68. The number of CMTs had increased by the time of trial, but the turnover rate remains a problem in providing a continuity of care. Proper recruiting incentives are necessary.\n69. While all but one member of the ancillary staff is either a registered nurse, emergency medical technician or licensed practical nurse, the defendants have not provided for training in physical diagnosis, a prerequisite for sick call screening.\n\nD. Health Care Screening\n70. The screening of inmate medical complaints is one of the ancillary personnel's most important functions at Menard. Through this process inmate access to a physician is controlled. Prior to the first inspection by the Court's panel, defendants had been informed by their own expert and employee of the deficiencies in the manner in which ancillary personnel were being utilized in the screening process. Despite this information, the only training session given to the Menard staff was in November of 1975. No new employee hired after that lecture was given this training or provided with the written materials.\n71. When the panel first inspected Menard this duty was performed by the CMTs who not only made determinations regarding referrals to physicians, but also frequently made independent decisions to administer prescription medications pursuant to the \"standing orders.\" The panel found that these responsibilities were clearly beyond the limits of the CMT's training and qualifications.\n72. The panel still found the screening process inadequate during its second visit, *517 citing lack of proper training and insufficient staff as major problems. The teams exercised personal judgment in determining whether an inmate would see a physician.\n73. The Court recognizes that proper screening is a vital element of adequate medical services. Written protocols and properly trained staff members are necessary to accomplish this goal.\n74. The physicians, at time of trial, still did not properly review the screening logs in order to check the decisions of the screening teams. In addition, the information in each log was unstandardized and too cursory for proper review, had such a procedure taken place.\n\nE. Ancillary Services\n75. CMTs were routinely administering intravenous therapy and giving respiratory treatment without proper supervision during the panel's first inspection. By the second visit, this practice was finally stopped.\n76. Medication was commonly being distributed by guards, at least until June of 1975. After that date, medical records show that either CMTs did not properly distribute the medication, or were too busy to properly complete the file. This haphazard system of distribution is inadequate to meet the needs of the residents at Menard.\n77. The deaths of inmates Willie Graham, Chester Graves and Kurt Robinson might have been prevented if the institution staffed the 11:00 P.M. to 7:00 A.M. shift with personnel trained in physical diagnosis. The review of deaths at Menard indicates a level of emergencies showing the need for personnel trained in physical diagnosis. The staff of CMTs and LPNs at the time did not meet this criteria.\n78. The present medical emergency plan and crisis procedure at Menard are deficient and do not meet the need for procedures enunciated by the panel. They also fail to comply with the administrative regulations of the Department[7] or with recommendations of the office of the Medical Services Administrator made as early as February, 1975.\n79. Laboratory services were medically unacceptable and unreliable at the time of the panel's first inspection. A hiring of a laboratory technician is essential to prevent costly delays which result when this work is sent out.\n80. Microbiology services, at the time of trial, remained deficient in both utilization and availability.\n81. At the time of the panel's first inspection, the radiology services were deficient in that long delays existed in sending out and receiving reports of x-rays and in the filing of these reports. In addition, there was no indication Menard physicians had read the x-rays prior to sending them out.\n82. At the time of trial, a new radiology service had been in place for several months and the panel found that there was an acceptable turnaround time for radiology reports.\n83. At the time of trial, the panel found medical records remained disorganized and failed to meet minimal standards. The system was not properly coordinated to insure that all information and test results be filed in the inmate's records within a reasonable time. Delays of over one year which existed at the time of trial, is an unacceptable medical practice.\n84. Untrained inmate nurses were inappropriately used by defendants to prescribe and distribute medicine, participate in sick call screening, work on medical records and the laboratory. These practices were gradually discontinued between 1974-1976. These inmate nurses as of the date of trial were confined to orderly positions, although they were still confined to monitoring inpatients in the medical unit. This latter practice should be replaced by a call light system.\n\nF. Quality of Medical Care\n85. A primary component of a minimally acceptable correctional health care system *518 is the implementation of procedures to review the quality of medical care being provided. A system of peer review and/or medical audit is the established method by which medical care may be evaluated and deficiencies corrected. The defendants have long been aware of the need to implement such a function into their state system, as well as at Menard, but this process has never been established. The defendants' failures in this regard have prevented them from detecting the inadequacies in their health care services and have resulted in the perpetuation of deficiencies which have resulted in unnecessary pain, harm and even the deaths of inmates at Menard.\n86. The panel, during its first investigation, conducted a medical audit of 30 randomly selected cases. The panel concluded that the care provided at Menard, as evidenced by these records, does not meet even minimally acceptable medical practice.\n87. During the second medical audit in September, 1977, the panel concluded that while some individual inmates were given proper care, many others were not.\n88. At trial, Dr. King cited numerous examples of inadequate medical care, such as physicians not ordering essential tests, or the failure to perform them if needed, incompleted medical records and treatment inconsistent with diagnosis. Dr. King concluded such deficiencies occurred frequently and were indicative of a lack in the quality of care.\n89. Based upon the testimony of Dr. King and the panel's opinion in its second report, the Court feels there is a serious question as to Dr. Lendrum's professional competency as a physician. No adequate evidence was introduced by defendants to resolve this doubt, either by way of specific cases or by credible assurances that a system of peer review or medical audit would be implemented.\n90. Defendants have continuously failed to obtain sufficient physician coverage to perform physical examinations on a timely and regular basis.\n91. Until one day prior to the panel's first inspection, this function was delegated to a medical technician. At the time of trial, Dr. Lendrum was performing this duty, but the panel determined that a significant backlog existed. In addition, the panel questioned the completeness of examinations.\n92. The Court also heard evidence on many deaths that had occurred at Menard during the pendency of this lawsuit. The panel had requested defendants to furnish the records of these deaths, as well as any resulting departmental investigations. The Court's expert testified that these deaths merited extensive physician review (as part of an on-going monitoring or medical audit effort), but that none of these cases had been the subject of such a process. This Court is alarmed not only at the lack of a regular system of review of deaths, but also at the complete failure of defendants' proof to address any of the following death cases testified to by the Court's panel and plaintiffs' expert, Dr. Whitney Addington.\n(A) Inmate Robinson died on December 21, 1974, after being admitted to Menard's medical unit and treated only by an unlicensed medical technician. This case was an example of a medical technician virtually \"practicing medicine.\" While Robinson was suffering from the toxic effects of ethyl alcohol, a medical technician first administered a major tranquillizer, the use of which was not indicated; and thereafter, administered epinephrine, intramuscularly. Epinephrine should not have been given in this instance and would have only been appropriate for an asthmatic in distress. Moreover, this drug should be administered subcutaneously and not intramuscularly; this improper method of administration could have side-effects on the heart. Robinson's condition then became critical and when a different medical technician determined there was no pulse, he then administered epinephrine directly into the heart muscle. This is a \"very desperate measure\" used by technicians with 350 hours of training. This technician did not even have the basic course in CPR.\n*519 The two physicians providing services at the institution at this time, Vidal and Zemlyn, state they had no involvement in the treatment given Robinson, and that they would not have ever authorized an intercardiac injection by a CMT. However, this technician was never reprimanded or admonished for his actions in this case. Dr. King testified that the entire course of treatment was \"grossly improper.\" He stated that Robinson's life might have been saved if given the benefit of an acceptable level of care, and that Menard did not have staff on duty who could properly deal with this situation.\n(B) Both Dr. King and plaintiffs' expert, Dr. Whitney Addington, testified to the circumstances surrounding the tragic death of Mr. Willie Graham on June 15, 1975. Prior to commitment to the Department of Corrections, Graham was a chronic asthmatic who generally responded to traditional therapy associated with the treatment of asthma. Such treatment would include the use of brochodialators; and in particular, the use of epinephrine, subcutaneously, and aminophylline, intravenously, in the event of acute attack. The use of sedatives is contra-indicated in the treatment of acute asthmatic patients and could cause ventilatory failure.\nDepartment records indicate that Mr. Graham was confined to Menard from February 11, 1975, to March 25, 1975, and from May 7, 1975, to the date of his death on June 15, 1975.\nDuring this brief period of time Mr. Graham suffered recorded asthma attacks on at least fifteen occasions. His \"treatment\" was devised and carried out, for the most part, by unlicensed, untrained and unsupervised medical technicians and inmates, who, without prior consultation with a physician, prescribed and administered a wide variety of medications, which could legally only be prescribed by a physician. Moreover, these medications were, in repeated instances, inappropriate, contra-indicted, of insufficient dosage to be effective, in excessive dosages which may have resulted in toxicity; and, in eleven (11) occasions during recorded asthma attacks, aminophylline was given by intramuscular injection, a totally unrecognized, painful method of administration.\nOn the few instances when Graham was seen by a physician, Dr. Vidal, acceptable care was still not given. Medications that were at odds with acceptable practice were prescribed, necessary laboratory tests were not ordered, and proper documentation of physical findings was not made in Graham's medical record. In addition, Dr. Vidal failed to terminate the intramuscular injections of aminophylline. Instead he verbally ordered, on June 13, 1975, that intravenous bronchodialators and inhalation therapy, the essential treatment for asthma, be denied and, instead, substituted the administration of Sparine. This drug, a tranquillizer used in the treatment of psychosis, is a respiratory depressant which can cause respiratory failure in an asthmatic who is in or going into ventilatory failure.\nTherefore, when Mr. Graham suffered an asthma attack on June 14th and June 15, 1975, he was administered Sparine and use of intravenous bronchodialators were denied. At that point, carbon dioxide was building up and only a mechanical ventilator could save him. Instead, he was transferred to segregation on June 15, 1975, and died within hours in his cell.\nDr. Addington analyzed the treatment of Mr. Graham in three phases. In reference to the acute asthma episodes, the doctor stated that they should have been treated more vigorously in an inpatient setting. He states that it is unlikely that Graham's acute attacks were ever completely broken. Regarding the chronic management between acute episodes, Addington explained that the care was \"chaotic\" with many people of varying expertise providing varying and haphazard therapy with no rationale, including the \"incredible\" intramuscular injections of aminophylline that clearly were not working. He stressed the need for all of the personnel to have arrived at a uniform course of treatment. Dr. Addington lastly addressed the care provided near the time of death. He stated that here the failure had been in not making the diagnosis *520 of ventilatory failure, that Mr. Graham had not been hospitalized when needed and the last chance to save his life had been lost. The doctor emphasized that Graham was not rare among asthmatics, that this was a straightforward case that has not been very well cared for, and that Mr. Willie Graham was rare only because he died.\nThe panel also reviewed Graham's case. Dr. King stated that a high level of skill and judgment was required at Menard on the night shift due to the level of pathology at the institution. The panel concluded that the decisions the CMTs were forced to make in Graham's case were not isolated. The panel's opinion was that Sparine was contra-indicated in the treatment of acute asthma and that it was not reasonable, from a systemic perspective, to require a CMT to determine and cope with adverse reactions to this drug. King stressed that the treatment ordered by the physician in this case demanded peer review.\n(C) Inmate Chester Graves died at the institution on February 3, 1976. Graves had been returned to the institution after having had a vein ligation. He was admitted to the institutional medical unit by a CMT at about 5:30 P.M. with swelling, shortness of breath, and chest pain. Graves died the following morning and was found to have had a pulmonary embolism.\nDr. King concluded that in this instance, the CMT was clearly unable to make a simple diagnosis of \"classic symptoms\" on the night of admission and that a person of appropriate skill would have sent this man immediately to a full-service hospital where he would have received an anti-coagulant. King stated that cases like Graves indicated that a high level of skill and judgment is required at Menard during the night-time hours. At the close of trial, there was not even a registered nurse at the institution at night.\n(D) Mr. Kenneth Daugherty died at Menard on April 15, 1976. Dr. King, on August 31, 1977, reviewed his medical records at trial concluding that Daugherty's life may have been saved if qualified personnel had been available to interpret an E.K.G. and physical symptoms which clearly suggested the ultimate cause of death. King testified that the records indicated: the delegation of responsibility for medical care to an unlicensed, unqualified person; the lack of an emergency medical system; the lack of procedures for transferring a patient to another facility for proper monitoring of his condition; and lack of medical audit procedures. In this last regard, King stated that the CMT involved in this case should have been reprimanded by his superiors and that Dr. King would not have retained this CMT in his own system in view of the CMT's conduct in this case.\n(E) Inmate Hansen died at the institution on June 22, 1977. This inmate's case was reviewed at trial by Dr. King. The panel had noted in their second report that the defibrillator at the institution was designed for pediatric use and was inadequate for treating a large size adult. King testified that Hansen was a large man of 240 pounds and that the unit at Menard was not able to generate enough power to perform defibrillation on a man of this size. Medical records indicate several unsuccessful attempts to cardiovert the patient with the defibrillator. King stated that an adequate unit might have saved his life.\nDr. Tabilon was employed at the institution at the time of Hansen's death. Dr. Lendrum stated that he had never used the defibrillator, but that Dr. Tabilon had on one occasion. Ms. Pietsek testified that Dr. Tabilon had used the unit on one occasion but that she did not get any notice from him after he had used it that it was inadequate. She stated that in August, 1977, when she contacted Tabilon regarding equipment needs for a disaster plan that he requested the purchase of an additional, portable unit. A timely review of this death would have disclosed the defibrillator's inadequacy.\n93. The Court finds, based on results of the panel's medical audits and supporting testimony as to specific examples, a well-defined pattern of substandard medical care to inmates in Menard over a three and *521 one-half year period up to and including the time of trial.\n94. The Court further finds, on the basis of the totality of evidence heard, both that relating specifically to the death cases and facts establishing systemic inadequacies, that the defendants' own conduct in operating and maintaining this substandard system was the proximate cause of the deaths of the inmates.\n\nG. Mental Health Care\n95. Dr. Rundle, whom the Court recognizes as a qualified expert in mental health care services, found that the defendants have not properly assessed all newly admitted inmates. The evaluations, at the time of trial, were not conducted in a timely manner, which resulted in delays for those needing specialized help.\n96. Rundle also finds patterns of placing potential suicides in the control cells, although unknown to the administrator of the medical unit. Care of these suicidal inmates was also delegated to medical technicians, instead of being under professional observation.\n97. In the area of ongoing therapy and counseling, Dr. Rundle and defendants' own experts, noted numerous deficiencies. Dr. Rundle stated that clinical psychologists had to be hired to provide both group and individual therapy. At the time of trial no such personnel were providing these services. In addition, in selected cases, psychiatrists should be involved in rendering ongoing psycho-therapy, however, defendants were also failing to provide this requirement.\n98. Rundle also testified that the reports prepared by the institutional psychiatrists were \"seriously deficient in most cases\" and that they failed to contain the essential elements of an adequate psychiatric evaluation, including a basic mental status examination. This physician stressed the need for having adequate written reports because of the possibility of transfer to other institutions.\n99. Defendants' own expert testified to the gross lack of adequate counseling services at Menard. At the time of trial defendant-Assistant Warden McGinnis testified that in Clinical Services there were 19 employees (a clinical services supervisor, 3 casework supervisors and 15 counselors). Of the 18 employees then identified as being theoretically available for direct counseling services, 8 had no formal education or training in counseling. McGinnis testified that to his knowledge only 7 of these personnel actually provided either group or individual counseling services. Group counseling services were comprised of 7 groups with a total participation of 64 residents, and 54 residents were receiving individual counseling.\n100. McGinnis explained that the counselors had an average caseload of 155 persons and that at that level, counseling was not a job requirement. He explained that the counselors had a large number of administrative tasks including report preparation which were basic job responsibilities. While he planned to hire 3 additional counselors reducing the average caseload to 135, he stated that unless caseloads were 100, counseling would not be a job duty but would remain a matter of individual motivation on the part of these employees. Dr. Grenfell testified on deposition that the Department's own policy of a 100 person caseload was generally accepted as being the staffing that was minimally required to provide adequate counseling services. He stated that presently the counselors had insufficient time to provide necessary services and that he had recommended to the defendants that they meet the 1:100 caseload ratio. This would require staffing of 26 counselors at the 2650 population level at the time of trial. At the time of trial, the counselors could not provide such services, due to administrative duties and large groups of about 155 people.\n101. Defense expert Jurczak testified that psychotropic medications comprised 50% of the 80,000 doses of medications dispensed monthly at Menard. He noted a high rate of minor tranquilizers and condemned their use in a correctional setting. *522 Jurczak concluded that the defendants were using too many drugs and not enough counseling.\n102. Based on a review of current institutional records at the time of trial, Dr. Rundle noted a pattern by the Menard psychiatrists of prescribing both major and minor tranquilizers, particularly Valium, to patients simultaneously. He stated the combination was not indicated, generally unacceptable and had no rational pharmacological basis. With regard to the major tranquilizers, Dr. Rundle testified that the dosages were not sufficient to arrest the symptoms of psychosis. If they were being prescribed for an inmate suffering such mental illness, it is likely that the medication would have no perceptible effects; for a non-psychotic person, the dosages would result in the subject feeling lethargic and sleepy, and experiencing impaired muscle coordination and thought processes — an effect uniformly described as unpleasant. As to non-psychotic residents, Dr. Rundle testified that the drugs were being used mistakenly or to simply control behavior.\n103. Defendants failed to properly monitor and evaluate patients who were receiving psychoactive medication. The medication reviews were scheduled or delayed by a layman without any input from a physician.\n104. Defendants stated that they rely upon the services available at the Menard Psychiatric Center to provide in-patient care for inmates who are seriously mentally ill. Dr. Rundle, who inspected the Psychiatric Center on behalf of the Justice Department testified that the treatment level available for its 280 person population at Menard Psychiatric is grossly deficient, and could not fulfill the needs of the system.\n105. A major problem occurred in the processing of transfers from Menard to the Psychiatric Center. Unacceptable delays existed in the transfer of residents who were in need of psychiatric care. These inmates were confined in segregation or control cells during the period awaiting transfer. Dr. Rundle condemned such placement and also noted a pattern of inmates suffering self-inflicted injuries during this period of delay.\n106. In addition to an inadequate number of counselors, there also exists a lack of sufficient coverage by clinical psychologists and psychiatrists. Fifteen weekly hours of coverage by a part-time psychiatrist is totally inadequate to serve the needs of the residents at Menard. Two full-time psychiatrists (or 80 hours) are needed to provide minimally adequate mental health services.\n107. Unacceptable delays existed not only in the referrals of possible suicidal inmates to psychiatrists, but delays also existed in referrals made by the hospital staff. Evidence showed a patient waiting seventeen days to see a psychiatrist after notifying the hospital staff of difficulties with his medication, a major tranquillizer.\n\nH. Organization and Administration of Health Care\n108. Departmental defendants have never provided leadership or consultative services in designing a health care delivery system at Menard. Patmon is the head of the Office of Medical Services Administration (OMSA). His job description includes evaluating the medical needs of the institution and devising a system to meet those needs. Despite this needed Departmental level input, Patmon has neither the authority, the budget nor the expertise to fulfill those responsibilities. Patmon's job, in fact, is purely advisory — he has no real authority to control the various aspects of medical care at Menard. However, Patmon has failed to respond even to `perceived needs' at Menard, and has done nothing to ascertain the needs of the institution or to assist in the design and implementation of a system of health care delivery. In addition, no provision for internal and external medical care audits have been established by the Department of Corrections.\n109. Patmon has only a `review and comment' function regarding medical budgets after they are drawn up and he has no idea who defends medical budget packages in the legislature. OMSA did not even *523 have this function until the FY 76 budget. However, in reviewing the medical budgets, he has failed to properly evaluate the medical needs of Menard. As a result, there was a continuation of grossly inadequate services to the institution. In concluding this review, Patmon also failed to respond to specific requests made by Menard's health care personnel.\n110. In addition, defendants have persistently failed to take any actions to inform themselves of the actual conditions at Menard. Moreover, they have ignored or failed to implement sound recommendations made by their own consultants and the Court's panel. The Department even resisted the appointment of the medical panel, asserting they \"strenuously object to paying any part of the cost involved in obtaining the services of a panel of experts since such panel is sought by plaintiffs in aid of proving their case and, in the defendants' opinion, such panel is not necessary in the interests of a fair disposition of this suit.[8]\n111. The Department of Corrections has failed to have a physician as medical director to specifically review the performance of the physicians and the medical care services at Menard. The Department of Corrections has, in fact, failed to properly monitor the health care in this institution or to conduct a medical audit of the physicians. This failure is particularly demonstrated by the cursory review conducted after the deaths of inmates Graham, Hutson, Daugherty and Nash. Patmon failed to extensively investigate these deaths in spite of his obligations to do so.\n112. In view of the defendants' consistent lack of official responsibility, this Court must conclude as the panel did, that \"only an ongoing independent, objective review process can monitor the medical program and health conditions in such a way as to insure the minimal standards of care are provided.\"[9] The Court further finds that the evidence at trial proved that the Illinois Department of Public Health in the performance of its duties under the Prison Inspection Act, has not fulfilled this need for independent monitoring.\n113. A final and particularly condemnable example of the indifference at the Department level is the continued rise in the population at Menard in the face of DOC's inadequate procedures and staff, inability to recruit and incompetence to organize a system of health care delivery at the institution. The deficiencies in organization, recruitment and staffing are all problems existing over a long period of time and well-known to the Department since at least 1973. For example, Babcock also noted the salary scales for RNs and policy of paying doctors full salary for half-time were disincentives to recruitment. In addition, the Babcock Report indicated that Menard was in an area where there was a lack of professionals making staffing extremely difficult. The Department ignored the problem at that time and has still not responded to these deficiencies. In response to the panel's first report regarding unqualified ancillary personnel, DOC asserted they would hire RNs in those positions. Ms. Pietsek subsequently admitted she was filling vacancies with LPNs and CMTs because she could not recruit RNs in the area.\n114. The physician staffing at Menard has never been stable since Dr. Wham resigned in September 1974. Yet, defendants continued to look to part-time services of doctors from this isolated area to supply medical coverage. These deficiencies persisted until the medical panel in their first inspection report in November 1976, found \"a systematic denial of medical services which is due both to institutional conditions and to an extreme lack of qualified medical care personnel and resources.\" It was also the consensus of the panel that no new residents should be subjected to these inadequate conditions and services. The panel also felt that no new residents be admitted *524 to Menard until the basic deficiencies were corrected. Despite their recommendations, the panel noted in their second report that the increased population to 2,600 had nullified the progress to correct those problems.[10]\n115. Director Rowe accepts the panel's assessment of the staffing levels and services that are needed. He also concedes the extreme difficulty of adequately staffing the institution for medical services. This problem is enhanced by the additional 600 inmates added to Menard since the panel's initial report.\n116. In spite of their own long history of failure and the panel's conclusions which finds support in the record, the defendants are unwilling to reduce the population or increase personnel and care to a level at which adequate services can be provided. Efforts by the Department of Corrections to recruit and retain physicians and ancillary personnel has to date been unsuccessful. The overcrowded cells also are a health hazard. The Court, therefore, concludes the population of 2,650 must also be reduced to a level in which adequate medical services can be rendered, or a proper system of medical care be provided to adequately cover this increased population.\n\nConclusions of Law\n1. The trial court record herein shows that the named defendants have repeatedly been informed of gross deficiencies in the health care system and of environmental conditions and practices which impair the physical and mental well-being of the plaintiffs. The system and conditions were below constitutional standards during the entire pendency of the suit and the medical panel's second report establishes that they remained inadequate at the time of trial. The defendants are consequently liable for the continued knowing maintenance of substandard health care services.\n2. The record shows that despite repeated notices of deficiencies, defendants have failed to remedy problems which exist in the physical plant. This lack of official responsibility has resulted in an environment which aggravates existing health problems, increases the demand for the limited health care services and fosters the outbreak of disease. These conditions, therefore, lead to unnecessary suffering and are inconsistent with the dictates of the Eighth and Fourteenth Amendments.\n3. Improper food storage, inadequate dishwashers, untrained personnel, the failure to provide a special diet for those who need it, open garbage tins and leaking water lines lead to the inevitable conclusion that lack of sanitation in food services presents an imminent danger to the health of each and every inmate. Laaman v. Helgemoe, 437 F.Supp. 269 (D.N.H.1977) and cases cited therein.\n4. The record shows that control cells have been used inappropriately by defendants causing serious harm to members of the plaintiff class during the entire period of the cells' use. The defendants' indifference is also apparent through a review of the Court's record.\n5. Health care admission screening procedures, including a physical examination performed by a physician, are an essential element of a constitutionally adequate system; the systemic absence of complete routine physical examinations, blood test, syphilis tests and other ordinary preventative medical measures can endanger the entire prison community. Laaman v. Helgemoe, supra at 312 (D.New Hampshire 1977) and cases cited therein. The Court finds from an examination of the record that such initial screening was not consistently and promptly conducted at Menard during the course of most of this litigation. The record shows that this system is so inadequate suffering must result.\n6. The Court finds that the staff shortages in both ancillary and medical personnel render the medical services below the constitutional level due under the Eighth Amendment because of the lack of medical coverage or by the use of unqualified staff *525 members. Despite the increase of staff during the litigation, the additional growth of the prison population has rendered some improvements ineffective. The Court recognizes that the need for a sufficient medical staff coverage is not merely a desired circumstance — but rather a constitutional right.\n7. The plaintiffs have demonstrated numerous instances where substandard care was received by individual inmates. The cases reviewed span a period from 1974 through the time of the trial in September 1977, and demonstrates a pattern of inadequate care at Menard. The panel's review of records noted numerous instances of substandard care and at trial, the panel members indicated that the individual cases they discussed were not isolated instances, but rather representative examples of the inadequacies in medical care they found at Menard. These examples of inmates who have suffered needlessly as a result of the lack of medical care provided by defendants, demonstrate that constitutional standards are not being met at Menard.\n8. The Court finds that the defendants have recklessly failed in their duties to design and implement a mental health care delivery system which is capable of providing minimally required levels of adequate mental health care. As a direct and proximate result of this failure, the plaintiff class has been and is presently subjected to unnecessary suffering. This conduct on the part of defendants constitutes deliberate indifference to legitimate and significant health care needs of the men confined at Menard.\n9. The Court also finds the evidence establishes that the budgetary process has been chaotic, irrational and the product of gross mismanagement on the part of administrative defendants at both the institutional and departmental levels. Adequate budgetary support for health care services is critical. There is no evidence of legislative insensitivity or lack of responsiveness. Defendants have repeatedly testified that there were no limitations placed on the Department by either Legislature or the Governor in terms of seeking funding for medical services. Defendants have recklessly failed to secure adequate finances for their health system. Such conduct constitutes \"deliberate indifferences\" to the serious medical needs of the plaintiffs.\n10. Administrative defendants have failed to take reasonable action within a reasonable time frame to correct the inadequacies in the delivery of health care services. This Court is convinced that absent the prosecution of this lawsuit and the consequential input of the medical panel even the limited improvements noted by the Court's experts on reinspection, would not have been made.\n11. The Court has extensively reviewed and set forth the gross inadequacies in staffing, facilities and procedures which it found to exist in relation to the health care needs of persons confined at Menard. Based on the totality of the evidence, the Court finds that these inadequacies result in a health care delivery system so wholly inadequate as to lead to unnecessary suffering to the plaintiff class.\n12. The Court specifically finds that the defendants have violated the plaintiffs' rights under the Eighth and Fourteenth Amendments of the United States Constitution.\n13. The Court further finds that the deficiencies in the system itself are the result of misadministration on the part of defendant-administrators that is so gross, it must be deemed willful.\n14. Finally, this Court also has jurisdiction over the pendent claims for relief based on state law in this case. It has been determined from examination of the record and the totality of the facts that defendants have also violated their own Administrative Rule 836 to provide medical services of a level and quality commensurate with good medical practice.\n15. In order for the Court to properly dispose of this action, a remedy must be fashioned which will eliminate all unconstitutional violations and guarantee that minimum standards are met. Close supervision *526 and interpretation of this remedial order may be necessary. In order to assist the Court in this complex plan, and due to the exceptional circumstances shown, a Master will be appointed under Rule 53 of the Federal Rules of Civil Procedure. While the Court does not, nor in fact, could not, delegate its full judicial responsibility and authority to a Master, such an appointment can relieve the Court of unnecessary judicial attention, thereby assuring there is sufficient review of the defendants' progress. The Court views this appointment as appropriate in light of Rule 53, and, in fact, essential to guarantee that minimal constitutional standards in medical services at Menard are safeguarded. See, Palmigiano v. Garrahy, 443 F.Supp. 956, 986 (D.R.I. 1977).\nTherefore, pursuant to the findings of fact and conclusions of law, made and entered in the opinion of this Court, IT IS ORDERED, ADJUDGED AND DECREED that the defendants, their agents, successors in office and all persons acting in concert or participation with them, be and they are hereby enjoined:\n1. From refusing or failing to provide minimum health care services as required by the United States Constitution, including the administration and delivery thereof, to the plaintiff class at Menard.\n2. It is therefore ordered that the defendants submit to this Court within sixty (60) days from entry of this order, a detailed plan on how defendants will bring the health care delivery system at Menard in compliance with minimum constitutional levels of care. This plan will be implemented in order that the defendants avoid further unconstitutional deficiencies enjoined by this Court. Such a plan shall include, but is not limited to:\nA. Development of an adequate health care system.\n1. Establishment of a Chief of Medical Services for the Department who shall be a physician licensed in the State of Illinois. This office shall be responsible for the overall direction and administration of medical and mental health services in the Department; he should have direct line authority within the Department and as such be responsible for development and presentation of the budgets for medical services at Menard and throughout the Department; be responsible directly to the Director of the Department and shall have adequate budget and staff to carry out these responsibilities.\n2. Employment of a physician licensed in Illinois as Chief Medical Officer at Menard with responsibility for direction and implementation of medical and mental health services at the institution.\n3. A prompt medical examination and medical history performed by a physician within seven (7) days after an inmate's commitment to the custody of the Department. Said examination and history shall be directed to the discovery of physical or mental illness; the segregation of prisoners suspected of infections or contagious conditions; the noting of any recommendation for treatment of physical or mental defects which create special problems for the prisoner and a plan to implement only necessary treatment.\n4. Medical services performed and medication dispensed solely by a medical staff with appropriate training and license and under the supervision of a licensed physician. The number of the staff shall be adequate to properly administer these services and medication.\n5. A sick call procedure utilizing persons trained in physical diagnosis and triage and written procedures and protocols; a record of all medical requests shall be maintained and these records and the procedures shall be monitored and reviewed by the Chief Medical Officer to insure the adequacy of the sick call procedure.\n6. The prescription, dispensing and administration of all medication under medical supervision.\n7. Laboratory and x-ray services that meet minimum standards for quality *527 and timeliness as determined by the Chief Medical Officer; quality controls and accurate record-keeping services shall be instituted and maintained in these areas and shall be monitored and reviewed by the Chief Medical Officer to insure that the minimum standards are being met by these services.\n8. Complete and accurate records documenting all medical examinations, medical findings and medical treatment developed and maintained pursuant to accepted professional standards; the Chief Medical Officer shall periodically review records to determine compliance; a trained staff shall be employed to provide adequate record-keeping services at Menard.\n9. Emergency medical care on a twenty-four hour basis, seven days per week, including:\n(a) Sufficient numbers of personnel with advanced training in emergency services to respond to the number and severity of medical emergencies existing at Menard;\n(b) Written emergency procedures to be utilized in such instances, including provision for contacting physicians and transferring to a hospital when necessary within acceptable time limits;\n(c) Equipment to be used in medical emergencies that is adequate to meet the needs of the population and is maintained and serviced at regular intervals;\n(d) Cost study shall be made for the possible purchase of an ambulance or mobile intensive care unit to be available at the institution for use in emergencies.\n10. Appropriate and effective in-service training programs for all medical personnel to provide demonstrated competency and documentation of qualification to perform required tasks.\n11. Regularly scheduled clinical visits to review the status of chronically ill inmates, including asthmatics, diabetics, epileptics, hypertensives and cardiac patients and programs of patient teaching in these areas.\n12. A system for monitoring of inpatients in the medical unit, including a call light system and trained personnel on floors where inpatients are kept; removal of inmate assistants from any responsibilities in this area.\n13. Provision for the performance of both internal and external audits of medical services at Menard according to acceptable professional standards on a regular basis; a peer review of all medical personnel by the Chief Medical Officer at Menard and the Office of Chief of Medical Services on a regular and periodic basis; external audits shall be performed by personnel not employed by the State of Illinois, the Department of Corrections or the Department of Public Health; these audits and reviews shall be for the purpose of ensuring that the standards required by this Court's order are being met and that adequate medical care is being provided to all inmates.\nB. The Department and the Chief of Medical Services shall promulgate, implement and review written regulations detailing the procedures and services provided by the Medical Unit at Menard subject to the approval of this Court.\nC. Defendants shall provide an adequate number of mental health professionals to diagnose, treat and care for those prisoners who have mental health problems, inmates requiring evaluation shall be promptly referred to this staff; suicidal inmates shall be referred on an emergency basis and kept under observation in suitable conditions.\n1. Mental health services shall be part of the medical services organization and under the supervision of the Chief Medical Officer.\n2. Sufficient numbers of full-time psychiatrists and clinical psychologists shall be employed to provide adequate screening of new admissions, be available for emergency intervention, and conduct and supervise ongoing counselling *528 and therapy for the needs of the Menard population.\n3. Sufficient numbers of ancillary staff, including trained counselors, emergency hospital, personnel and psychiatric nurses shall be employed to implement programs and treatment prescribed by the psychiatrists and psychologists.\n4. The use and dosages of psychotropic drugs shall be reviewed within thirty (30) days of the entry of an order by a psychiatrist with experience in a correctional setting.\nD. Menard shall satisfy at least the following minimum condition:\n1. Defendants shall provide each prisoner with appropriate supplies to keep his cell clean.\n2. A regular and effective program of insect and rodent control shall be undertaken.\n3. All trash and debris shall be regularly removed from hallways, cellblocks, corridors and other common areas and trash, debris and used mattresses shall in no circumstances be stored or accumulated in vacant cells.\n4. Each cell, whether in segregation, reception and classification, or general population units, shall be equipped with a working toilet which can be flushed from inside the cell, a sink with hot and cold running water, personal storage units and refuse containers made of noncombustible materials, a clean mattress, clean bed linens changed weekly, clean blankets changed every 90 days and a bed off the floor.\nE. All inmates, whether confined in segregation, or reception and classification, shall be provided adequate shower and exercise.\nF. Food shall be stored, prepared and served under sanitary conditions. Equipment shall be maintained in good working order.\n1. Food shall be prepared under the direction of a dietitian certified in the State of Illinois who shall plan menus and assist in food preparation, purchasing and sanitation.\n2. Kitchen employees and inmates working in the food services area shall be adequately trained and supervised in the handling and preparation of food, inmates working in food services shall receive physical examinations prior to assignment to food services to determine their suitability for such work and at least annual physicals thereafter to determine continued suitability.\nG. The defendants shall demonstrate to this Court that they can properly house 2,650 inmates while providing an adequate medical care system, with a sufficient number of medical personnel. The defendants must also show that all above guidelines have been followed in making this demonstration to the Court. If the defendants cannot sustain this burden, they must then specifically designate the maximum number of residents who could be properly kept at Menard. The Court specifically reserves the right to reduce the population to a level it feels appropriate in light of all evidence in the record.\nIn order to aid in the development and implementation of this plan, a Master will be appointed pursuant to Rule 53 to assist the Court. Both parties shall submit names and resumes of possible masters within twenty (20) days in order that the Court may select a qualified neutral party to become the Master. The Master should be a physician with experience in the design and delivery of health care services in a correctional setting.\nThe Master shall be empowered to monitor compliance with and implementation of the relief ordered herein. The Master shall also advise and assist the Court to the fullest extent possible. The Master will report to the Court on a monthly basis on the progress of such compliance and implementation, and make findings and recommendations concerning compliance with relief ordered as well as the necessity for further relief in this case. In order to carry out his duties the Master shall have the following power and authority:\n\n*529 1. The Master or his delegates shall have unlimited access to any facilities, buildings or premises under the control of the Department of Corrections, or any records, files or papers maintained by said Department. Access shall be granted at any time and no advance notice shall be necessary.\n2. The Master is authorized to conduct confidential interviews at any time, without advance notice, with any staff employee of the Department or any prisoner. The Master or his delegate may attend any institutional meetings or proceedings.\n3. The Master may require written reports from any staff members or employees of the Department of Corrections with respect to compliance with and implementation of this Court's orders.\n4. In the event that hiring of additional personnel or the termination of any current personnel is necessary to carry out or to prevent interference with the Court's order, the Master shall file a written report with the Court explaining why such action is necessary. Defendants may file a written response to the report and the Court shall approve or reject the recommendation of the Master.\n5. The Master is authorized to select and hire with the prior approval of the Court, a full-time staff consultant if such person is needed to assist him in carrying out his duties and one full-time clerk-stenographer, if needed. Adequate offices, equipment and supplies shall be made available by the defendants. The Master may also consult appropriate independent specialists.\n6. Necessary expenses for carrying out the Master's duties shall be paid pursuant to Rule 53, Federal Rules of Civil Procedure, and shall be taxed as part of the costs of this case against the defendants in their official capacities.\nIt is further ordered that the defendants shall, within six (6) months from the date of this order, submit a comprehensive report setting forth their progress in implementation of each and every element of relief in this order, with a timetable for full compliance. Copies of this report shall be provided to plaintiffs' counsel.\nPlaintiffs will submit to the Court within thirty (30) days briefs detailing the applicability of 42 U.S.C. § 1988, which allows reasonable attorney fees and costs to this action. The plaintiffs will also provide justification for all costs and expenses incurred in the prosecution of this action. Plaintiffs will also specify the method used in computing reasonable attorney fees. Defendants may respond on any aspect of this issue within sixty (60) days of this order.\nFinally, the Court specifically retains jurisdiction of this cause for purpose of enforcing this order and for entering any and all additional orders deemed necessary to implement the effect and intent of this decree.\nIT IS SO ORDERED.\nNOTES\n[1] The relevant part of Rule 706 is as follows:\n\n(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The Court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.\n[2] Court's order of March 12, 1976.\n[3] Report of Medical Panel Concerning Menard Correction Center, I, p. 5 (hereinafter Panel Report)\n[4] Panel Report II, p. 4.\n[5] Panel Report II, pp. 3-4.\n[6] The Panel stated: \"All of these deficiencies except one could be corrected if physicians had adequate time to examine patients more thoroughly, write or dictate proper notes, and upgrade the coordination among the various practitioners. The current existence of such deficiencies is reflective of a continuing imbalance in the ratio of population to quality and quantity of physician and physician extender coverage.\" Panel Report II, p. 4.\n[7] A.R. 836 II, N.\n[8] Defendants' reply to plaintiffs' motion for entry of order to show cause why expert witnesses should not be appointed, mailed for filing February 2, 1976.\n[9] Panel Report I, p. 30.\n[10] Panel Report II, p. 12.\n\n", "ocr": false, "opinion_id": 1753532 } ]

[ "382 P.2d 491", "62 Wash. 2d 228" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5991, "opinion_text": "\n62 Wash. 2d 228 (1963)\n382 P.2d 491\nTHE STATE OF WASHINGTON, Appellant,\nv.\nCHARLES AUGUSTA LEE, Respondent.[*]\nNo. 36197.\nThe Supreme Court of Washington, En Banc.\nMay 29, 1963.\n*229 Charles O. Carroll and Richard M. Foreman, for appellant.\nTorbenson, Thatcher & Stevenson, for respondent.\nOTT, C.J.\nMarch 3, 1961, Charles Augusta Lee informed Dr. H.R. Pyfer that he was in pain as a result of a recent injury to his left knee; that his name was Charles Allen, and that he resided at Issaquah, Washington. An examination of the knee did not disclose any injury; however, the doctor did find that it had been previously fused. To alleviate the alleged pain, the doctor prescribed percodan, a narcotic drug. Lee took the prescription to the pharmacy adjacent to the doctor's office, again represented that he was Charles Allen of Issaquah, and asked the pharmacist to request the doctor to prescribe a different drug because percodan made him ill. Dr. Pyfer then substituted the narcotic drug demerol. The prescription was filled, and Lee signed a charge slip as Charles Allen, Issaquah, Washington.\nMarch 6, 1961, Lee returned to Dr. Pyfer's office and obtained a refill of the prescription. Upon this second office call, the doctor recognized him to be Charles Lee, and notified the police.\nAfter Lee left the pharmacy with the demerol, he was arrested. Lee told the arresting officer that the reason he had used a false name and address was that \"... he wanted the demerol and he knew that he couldn't get it by using his right name and address.\" He later made a similar statement to his probation officer.\nSubsequently, Lee was charged with feloniously obtaining a narcotic drug, in violation of RCW 69.33.380(1) (d), which provides:\n\"(1) No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug ... (d) by the use of a false name or the giving of a false address.\" (Italics ours.)\nThe evidence at the jury trial was substantially as indicated above. In addition, Dr. Pyfer testified that, in prescribing the drug, he had relied upon the defendant's statement of alleged pain. He further stated that he would not have prescribed the drug had he known the defendant's *230 true name, because his records would have disclosed that Charles Lee had not paid his previous account.\nAt the close of the state's evidence, the defendant moved for dismissal, contending that the evidence was insufficient to prove that Dr. Pyfer had relied upon the false name and address given to him by the defendant. The court granted the motion, and the state appeals.\nThe appeal presents a single issue: Is reliance upon a false name and/or address by the doctor or pharmacist prescribing a drug or filling a prescription, an element of the offense proscribed by RCW 69.33.380(1) (d)?\nThe Uniform Narcotic Drug Act (Laws of 1959, chapter 27, p. 197, RCW 69.33) regulates the possession, use, and disposal of narcotic drugs, and provides for licensing those engaged in the sale thereof. It further provides that\n\"... The record of all narcotic drugs sold, administered, dispensed, or otherwise disposed of, shall show the date of selling, administering, or dispensing, the name and address of the person to whom, or for whose use ... the drugs were sold, administered or dispensed, and the kind and quantity of drugs. Every such record shall be kept for a period of two years from the date of the transaction recorded....\" (Italics ours.) RCW 69.33.300(5).\nPenalties are prescribed for violation of any of the provisions of the act. RCW 69.33.410.\nThe respondent contends that, if, under RCW 69.33.380 (1) (d), proof only of the giving of a false name and/or address in obtaining a narcotic drug is sufficient to establish the offense, persons innocent of any corrupt motive in using a false name and/or address would be guilty of crime, unless a causal relationship in the nature of reliance is a required element of the offense.\nThe issue raised is one of first impression in this state. It has been decided in other jurisdictions adversely to respondent's contention.\nIn People v. Oviedo, 106 Cal. App. (2d) 690, 235 P. (2d) 612 (1951), the defendant was charged with violation of a statute which provided that \"`No person shall, in connection with the prescribing, ... or dispensing of any *231 narcotic drug ... give a false name or address ...'\" The defendant contended that reliance was a necessary element of the offense. In this regard, the court stated (p. 693):\n\"Lastly, in connection with the contention that absurd results would follow if the statute were strictly construed to include defendant, he cites United States v. Katz, 271 U.S. 354 [46 S. Ct. 513, 70 L. Ed. 986], and argues that the giving of a false name by the patient was of no causative effect whatever on the prescribing or in the distribution of narcotics since the evidence shows that the doctor would have prescribed the drug as readily if the true name had been given. The provisions of the Health and Safety Code set up a system of recordation of prescriptions to eliminate, insofar as it is humanly possible, the use of such narcotic prescriptions for illegal purposes. If the patient is allowed to give a false name and address it would be impossible, through the system, to detect illegal activity. No absurd result is reached by an interpretation of the section which precludes a patient from giving a false name or address in connection with such narcotic prescriptions. That section makes certain conduct criminal and, in the instant case, the person's conduct falls clearly within the provisions of the section. It can scarcely be material that the defendant would have also received the narcotics if he had not committed the acts forbidden by the statute. It does not follow that, because a police measure may affect persons innocent of criminal intent, it thereby produces an absurd result. [Citing cases.]\"\nIn State v. Newstead, 280 S.W. (2d) 6 (Mo. 1955), the defendant was charged under a statutory provision identical to that here in question. In commenting upon the sufficiency of the evidence to sustain the conviction, the court stated (p. 9):\n\"It is clear that the foregoing subsection makes it a separate offense `to obtain a narcotic drug, * * * by the uses of a false name or the giving of a false address.' While testimony adduced by the state may not have shown that the prescription was written or filled because of the false name or address given by defendant, and it may be that certain of the state's evidence may be construed as tending to show the contrary, still, in view of defendant's admission that he did in fact use a false name and address for the purpose *232 of obtaining a narcotic drug, and in view of the further evidence that he did in fact obtain a narcotic drug under the false name and address admittedly given for the purpose of obtaining it, we are of the opinion that the evidence was sufficient to sustain the essential charge contained in the amended information.\" (Italics ours.)\nIn Geurin v. Nevada, 73 Nev. 233, 315 P. (2d) 965 (1957), the same issue was raised. The court stated (p. 235):\n\"Appellant further contends that it was not proved that his use of a false name `was the motivating and causative basis' for the druggist's delivery of the narcotic to him and that it was, therefore, not proved that he obtained the drug `by the use of a false name.' The contention would appear to be that it was necessary for the state to negative all other causes that might possibly have motivated the druggist in delivering the drug to appellant. It appears from the transcript that the druggist required appellant to sign for receipt of the drug, whereupon appellant signed the false name of Virgle Moore. We do not find the argument convincing.\"\nRespondent contends that the cited cases are distinguishable. He urges that, in People v. Oviedo, supra, the statute was a prohibition against the giving, rather than the use of a false name. We find this distinction to be without merit.\nRespondent further contends that, in State v. Newstead, supra, the defendant admitted that his purpose in using a false name and address was to obtain the drug. In the instant case, the evidence established that respondent also admitted that he used the false name and address because he knew he would not obtain the narcotic if he used his true name. We find no merit in this contention.\nRespondent cites State v. Powell, 212 Ore. 684, 321 P. (2d) 333 (1958), and argues that this court should adopt the rationale of that case, which requires the element of reliance. The Oregon court, in the cited case, was interpreting two statutes, each of which provided a different penalty for the same offense, one a misdemeanor and the other a felony. The statute which denominated the offense a felony was identical to RCW 69.33.380(1) (d). The court, in giving meaning to both acts of the legislature, determined that the legislature intended that the felony statute required *233 an additional element of reliance on the false name and address by the person prescribing the drug, but that the misdemeanor statute did not. The case is not apropos for the reason that we are not concerned, in this appeal, with reconciling two statutes.\n[1, 2] The state has broad police powers to regulate and control activities which are detrimental to the general health and welfare of the people. State v. Boren, 36 Wn. (2d) 522, 219 P. (2d) 566, 20 A.L.R. (2d) 798 (1950). Because of the extremely dangerous and injurious effect of the unregulated use of narcotic drugs, \"... We are also committed to allow the maximum scope of police power in the control of the illegal use of narcotic drugs....\" Seattle v. Ross, 54 Wn. (2d) 655, 661, 344 P. (2d) 216 (1959).\n[3] The intention of the legislature, in the enactment of a regulatory measure, must be determined from a consideration of all of the provisions of the act. It is the duty of the court to adopt a construction of the statute that is reasonable, and in furtherance of the obvious and manifest purpose of the legislation. State v. Rinkes, 49 Wn. (2d) 664, 667, 306 P. (2d) 205 (1957), and case cited.\n[4, 5] The legislative purpose, in enacting the Uniform Narcotic Drug Act, was to curb illegal traffic in narcotic drugs, and to regulate and control their sale and distribution. The section here in question, when read in conjunction with the recording provisions of the act, is directed at a particular aspect of this general purpose, namely, to prevent a person with a seemingly legitimate complaint from obtaining an oversupply of narcotic drugs by using a different name and address in any number of physicians' offices and/or pharmacies. To curtail such excessive use and the unlawful obtaining of narcotic drugs is well within the proper exercise of the police power of the state.\n[6] The respondent's statement that his purpose for using a false name and address was \"that he couldn't get it by using his right name and address,\" brings the facts of this case precisely within the purview of the statute.\n*234 We conclude that, in enacting RCW 69.33.380(1) (d), the legislature did not intend that proof of reliance upon a false name and/or address by the doctor or pharmacist should be an element of the offense.\nThe judgment of dismissal is reversed.\nHILL, FINLEY, HUNTER, and HALE, JJ., concur.\nDONWORTH, J. (dissenting)\nThe majority have concluded that RCW 69.33.380 (1) (d) merely augments RCW 69.33.300, relating to records to be kept in receiving and dispensing narcotics. Because of the reasons expressed in this opinion, I am compelled to reach a different conclusion.\nRCW 69.33.380(1) (d) was enacted by our legislature when it adopted the Uniform Narcotic Drug Act recommended by the commissioners on uniform state laws. The Uniform Narcotic Drug Act, 9B U.L.A., pp. 275-332, is divided into several sections. Section 9 is entitled \"Record to be Kept.\" Part of this section is quoted in the majority opinion and is found in RCW 69.33.300. Section 17 of the Uniform Narcotic Drug Act is entitled \"Fraud or Deceit.\" This section is codified as RCW 69.33.380.\nRCW 69.33.380(1) reads as follows:\n\"No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug, (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the forgery or alteration of a prescription or of any written order; or (c) by the concealment of a material fact; or (d) by the use of a false name or the giving of a false address.\"\nThe majority have isolated part (d) of subsection (1) from parts (a), (b) and (c), concluding that it is only a supplement to the recording provisions of RCW 69.33.300. Therefore, under the rationale of the majority, a violator is not to be punished for obtaining a narcotic drug by any surreptitious means, but rather the punishment is to be imposed for hindering a doctor or pharmacist in his record keeping.\nIn transposing this provision from the fraud and deceit section to that concerning record keeping, the majority *235 cite People v. Oviedo, 106 Cal. App. (2d) 690, 235 P. (2d) 612 (1951). The statute under consideration by the California court was not copied from the Uniform Narcotic Drug Act.\nThe majority conclude that the California statute is indistinguishable in effect from the one under consideration in the instant case, stating that\n\"... the statute was a prohibition against the giving, rather than the use of a false name. We find this distinction to be without merit.\"\nIn my opinion, the wrong portions of the two statutes have been emphasized.\nThe California statute provides:\n\"`No person shall, in connection with the prescribing, ... or dispensing of any narcotic drug ... give a false name or address.'\"\nThe prohibition is directly against giving a false name, in connection with prescribing or dispensing a narcotic drug.\nRCW 69.33.380 (1) (d) provides:\n\"No person shall obtain ... a narcotic drug ... by the use of a false name or the giving of a false address.\"\nHere, the prohibition is directly against obtaining narcotic drugs in an illegal manner.\nIn each of the four subdivisions of RCW 69.33.380(1), the phrase obtain by introduces an illegal means of procuring narcotic drugs. Unless there is some causal connection between the activity enumerated in these subdivisions and the obtaining of a narcotic drug, the activity cannot be the means by which the drug is obtained.\nThe dismissal of the charge by the trial court was based upon the trial judge's conclusion that the state had failed to prove that the narcotics were \"obtained by the use of a false name or the giving of a false address,\" in the sense that the false name or address was relied upon by the doctor and the pharmacist and could be said to have enabled respondent to obtain the narcotics. The issue (as framed by the briefs of both appellant and respondent) is whether reliance by the physician prescribing, or the pharmacist *236 dispensing, a narcotic drug, on the use of a false name or address given by respondent is a necessary element to be proved by the state in order to constitute a violation of RCW 69.33.380 (1) (d). In other words, did the use of the false name and address cause respondent to obtain the narcotic drug?\nAt the trial on cross-examination of Dr. Pyfer by respondent's counsel, the following testimony was elicited:\n\"Now your diagnosis, then, and your ultimate prescription of this drug, was to curb whatever pain he did have? If he was to be believed, at least, it was for the pain? A. That is correct, from his history of pain from the injury, the recent injury of that morning.... Q. It is not true, Doctor, that you did not prescribe this demerol because Mr. Lee gave you a false name and address? That was not the reason you prescribed the drug, was it? A. No, it was not.\"\nThe deputy prosecutor, in presenting his case, did elicit from Dr. Pyfer testimony that the narcotic prescription would not have been given had he known respondent's true name. However, I think this testimony was adequately explained when Dr. Pyfer was called by defense counsel and testified as follows:\n\"Q. Dr. Pyfer, yesterday a question was given you by the prosecutor asking if you would have given the defendant Lee the Prescription if you had known his real name. Do you recall that question? A. Yes, I do. Q. My question to you at this time is: why would you not have given him the prescription had you known his real name? A. In his chart we have records of non-payment of bills, and for this reason I would not have taken care of him.\"\nClearly, this testimony could only mean that the doctor, if he had been informed as to the patient's true name, would not have rendered any further service for respondent because he still owed the doctor for services previously rendered.\nState v. Powell, 212 Ore. 684, 321 P. (2d) 333 (1958), interpreted a statute which is identical to that under which respondent was charged. The Oregon court held that reliance on the false name or address is an element that must *237 be present in order to constitute a violation of the statute. The court said:\n\"The evidence in this case discloses that the doctor in prescribing the narcotic to the defendant on the 20th and 23rd of July put no reliance in the name or address of the defendant whatsoever but relied solely upon the defendant's representations of her physical condition and his own examination of her condition. When she returned on the 25th of July, the doctor did not refuse her a prescription because of her name or the address, but because he had already prescribed more than was proper or necessary in the treatment of her condition. In other words, the defendant as a person and not because of name or address received the very narcotics intended by the doctor. Thus the false name or address was immaterial.\"\nThe majority, in support of their position that no reliance is required, cite two cases also construing statutes indentical to the one before us. However, Geurin v. Nevada, 73 Nev. 233, 315 P. (2d) 965 (1957), only held that the false name and address need not be the sole motive and cause in the delivery of narcotics. State v. Newstead, 280 S.W. (2d) 6 (Mo. 1955), held that no causal connection was necessary when the defendant admitted the use of the false name for the purpose of obtaining a narcotic drug and actually obtained a narcotic drug. Whereas I agree that a defendant must intend to obtain a narcotic drug, I disagree with the Newstead case to the extent that it holds that no reliance on the false name by the person dispensing the narcotic drug is necessary.\nThe fact that both parties cite authority in support of their interpretation of this uniform statute indicates that there is a latent ambiguity in the statute. In such a situation, I cannot agree that a criminal statute can be properly construed in favor of appellant. As this court has had occasion to say in the past:\n\"... Laws are interpreted in favor of liberty, and if a statute is capable of two constructions, one of which makes a given act criminal and the other innocent, the statute will be given the construction which favors innocence.\" State v. Anderson, 61 Wash. 674, 676, 112 P. 931 (1911).\n*238 Accord: State v. Hardwick, 63 Wash. 35, 114 P. 873 (1911); State ex rel. Dorrien v. Hazeltine, 82 Wash. 81, 143 P. 436 (1914); State v. Furth, 82 Wash. 665, 144 P. 907 (1914); Huntworth v. Tanner, 87 Wash. 670, 152 P. 523 (1915); State v. Eden, 92 Wash. 1, 158 P. 967, 159 P. 700 (1916); State v. Levy, 8 Wn. (2d) 630, 113 P. (2d) 306 (1941).\nIn State v. Levy, supra, we said:\n\"Conceding, however, for the sake of argument, that the sections of the statute above referred to might, according to the interpretation placed upon them by the trial court, be applicable to the instant situation, the result would simply be that a question of statutory construction would be presented concerning which judicial minds might radically, yet reasonably, differ. In such event, we are faced with the principle, universally recognized, that, in a criminal case, reasonable doubts upon questions of law, as well as upon questions of fact, must be resolved in favor of the accused....\"\nI would adopt the reasoning of the trial court that the statutory provision here in question requires reliance on a false name or address. The provision does not prohibit everyone from obtaining narcotics. It is designed to prevent those who are not justifiably entitled to receive narcotics from obtaining them by surreptitious means.\nThe trial judge gave this example of the type of situation which he considered that the particular subsection before us was intended to cover:\n\"Let us take an example. Let us assume that the doctor has in his files a history that one Charles Allen requires demerol, and he had previously given a prescription to Charles Allen for the demerol, and Charles Allen calls and wants that prescription refilled, and Charles Lee goes in and represents himself as Charles Allen and the prescription is filled by the physician. This is what I think the statute contemplates.\"\nUnder this interpretation of subsection (d), only those persons who actually obtain a narcotic drug by the means forbidden therein are violators. This interpretation is consistent with RCW 69.33.380(1), read in its entirety.\n*239 In the case at bar, Dr. Pyfer, when asked, would not testify that respondent requested a narcotic drug. He did say that he prescribed the drug because of his own examination of respondent and the latter's history of pain. There is no evidence to support a jury finding that Dr. Pyfer in any way relied upon the false name and address in prescribing the drug.\nIn my opinion, the state failed to prove an essential element of the crime charged in this case, to wit, reliance upon a false name or address. Without such reliance, the false name and address were immaterial. It was not the means by which the drug was obtained.\nI would affirm the trial court's order of dismissal.\nWEAVER, ROSELLINI, and HAMILTON, JJ., concur with DONWORTH, J.\nNOTES\n[*] Reported in 382 P. (2d) 491.\n\n", "ocr": false, "opinion_id": 2606710 }, { "author_str": "Ott", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOtt, C. J.\nMarch 3, 1961, Charles Augusta Lee informed Dr. H. R. Pyfer that he was in pain as a result of a recent injury to his left knee; that his name was Charles Allen, and that he resided at Issaquah, Washington. An examination of the knee did not disclose any injury; however, the doctor did find that it had been previously fused. To alleviate the alleged pain, the doctor prescribed percodan, a narcotic drug. Lee took the prescription to the pharmacy adjacent to the doctor’s office, again represented that he was Charles Allen of Issaquah, and asked the pharmacist to request the doctor to prescribe a different drug because percodan made him ill. Dr. Pyfer then substituted the narcotic drug demerol. The prescription was filled, and Lee signed a charge slip as Charles Allen, Issaquah, Washington.\nMarch 6, 1961, Lee returned to Dr. Pyfer’s office and obtained a refill of the prescription. Upon this second office call, the doctor recognized him to be Charles Lee, and notified the police.\nAfter Lee left the pharmacy with the demerol, he was arrested. Lee told the arresting officer that the reason he had used a false name and address was that “ . . . he wanted the demerol and he knew that he couldn’t get it by using his right name and address.” He later made a similar statement to his probation officer.\nSubsequently, Lee was charged with feloniously obtaining a narcotic drug, in violation of RCW 69.33.380(1) (d), which provides:\n“(1) No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug ...(d) by the use of a false name or the giving of a false address.” (Italics ours.)\nThe evidence at the jury trial was substantially as indicated above. In addition, Dr. Pyfer testified that, in prescribing the drug, he had relied upon the defendant’s statement of alleged pain. He further stated that he would not have prescribed the drug had he known the defendant’s *230true name, because his records would have disclosed that Charles Lee had not paid his previous account.\nAt the close of the state’s evidence, the defendant moved for dismissal, contending that the evidence was insufficient to prove that Dr. Pyfer had relied upon the false name and address given to him by the defendant. The court granted the motion, and the state appeals.\nThe appeal presents a single issue: Is reliance upon a false name and/or address by the doctor or pharmacist prescribing a drug or filling a prescription, an element of the offense proscribed by RCW 69.33.380(1) (d)?\nThe Uniform Narcotic Drug Act (Laws of 1959, chapter 27, p. 197, RCW 69.33) regulates the possession, use, and disposal of narcotic drugs, and provides for licensing those engaged in the sale thereof. It further provides that\n“ . . . The record of all narcotic drugs sold, administered, dispensed, or otherwise disposed of, shall show the date of selling, administering, or dispensing, the name and address of the person to whom, or for whose use . . . the drugs were sold, administered or dispensed, and the kind and quantity of drugs. Every such record shall be kept for a period of two years from the date of the transaction recorded. ...” (Italics ours.) RCW 69.33.300(5).\nPenalties are prescribed for violation of any of the provisions of the act. RCW 69.33.410.\nThe respondent contends that, if, under RCW 69.33.380 (1) (d), proof only of the giving of a false name and/or address in obtaining a narcotic drug is sufficient to establish the offense, persons innocent of any corrupt motive in using a false name and/or address would be guilty of crime, unless a causal relationship in the nature of reliance is a required element of the offense.\nThe issue raised is one of first impression in this state. It has been decided in other jurisdictions adversely to respondent’s contention.\nIn People v. Oviedo, 106 Cal. App. (2d) 690, 235 P. (2d) 612 (1951), the defendant was charged with violation of a statute which provided that “ ‘No person shall, in connection with the prescribing, ... or dispensing of any *231narcotic drug . . . give a false name or address . . . ’ ” The defendant contended that reliance was a necessary element of the offense. In this regard, the court stated (p. 693):\n“Lastly, in connection with the contention that absurd results would follow if the statute were strictly construed to include defendant, he cites United States v. Katz, 271 U. S. 354 [46 S. Ct. 513, 70 L. Ed. 986], and argues that the giving of a false name by the patient was of no causative effect whatever on the prescribing or in the distribution of narcotics since the evidence shows that the doctor would have prescribed the drug as readily if the true name had been given. The provisions of the Health and Safety Code set up a system of recordation of prescriptions to eliminate, insofar as it is humanly possible, the use of such narcotic prescriptions for illegal purposes. If the patient is allowed to give a false name and address it would be impossible, through the system, to detect illegal activity. No absurd result is reached by an interpretation of the section which precludes a patient from giving a false name or address in connection with such narcotic prescriptions. That section makes certain conduct criminal and, in the instant case, the person’s conduct falls clearly within the provisions of the section. It can scarcely be material that the defendant would have also received the narcotics if he had not committed the acts forbidden by the statute. It does not follow that, because a police measure may affect persons innocent of criminal intent, it thereby produces an absurd result. [Citing cases.]”\nIn State v. Newstead, 280 S. W. (2d) 6 (Mo. 1955), the defendant was charged under a statutory provision identical to that here in question. In commenting upon the sufficiency of the evidence to sustain the conviction, the court stated (p. 9) :\n“It is clear that the foregoing subsection makes it a separate offense ‘to obtain a narcotic drug, * * * by the uses of a false name or the giving of a false address.’ While testimony adduced by the state may not have shown that the prescription was written or filled because of the false name or address given by defendant, and it may be that certain of the state’s evidence may be construed as tending to show the contrary, still, in view of defendant’s admission that he did in fact use a false name and address for the pur*232pose of obtaining a narcotic drug, and in view of the further evidence that he did in fact obtain a narcotic drug under the false name and address admittedly given for the purpose of obtaining it, we are of the opinion that the evidence was sufficient to sustain the essential charge contained in the amended information.” (Italics ours.)\nIn Geurin v. Nevada, 73 Nev. 233, 315 P. (2d) 965 (1957), the same issue was raised. The court stated (p. 235):\n“Appellant further contends that it was not proved that his use of a false name ‘was the motivating and causative basis’ for the druggist’s delivery of the narcotic to him and that it was, therefore, not proved that he obtained the drug ‘by the use of a false name.’ The contention would appear to be that it was necessary for the state to negative all other causes that might possibly have motivated the druggist in delivering the drug to appellant. It appears from the transcript that the druggist required appellant to sign for receipt of the drug, whereupon appellant signed the false name of Virgle Moore. We do not find the argument convincing.”\nRespondent contends that the cited cases are distinguishable. He urges that, in People v. Oviedo, supra, the statute was a prohibition against the giving, rather than the use of a false name. We find this distinction to be without merit.\nRespondent further contends that, in State v. Newstead, supra, the defendant admitted that his purpose in using a false name and address was to obtain the drug. In the instant case, the evidence established that respondent also admitted that he used the false name and address because he knew he would not obtain the narcotic if he used his true name. We find no merit in this contention.\nRespondent cites State v. Powell, 212 Ore. 684, 321 P. (2d) 333 (1958), and argues that this court should adopt the rationale of that case, which requires the element of reliance. The Oregon court, in the cited case, was interpreting two statutes, each of which provided a different penalty for the same offense, one a misdemeanor and the other a felony. The statute which denominated the offense a felony was identical to ROW 69.33.380(1) (d). The court, in giving meaning to both acts of the legislature, determined that the legislature intended that the felony statute re*233quired an additional element of reliance on the false name and address by the person prescribing the drug, but that the misdemeanor statute did not. The case is not apropos for the reason that we are not concerned, in this appeal, with reconciling two statutes.\nThe state has broad police powers to regulate and control activities which are detrimental to the general health and welfare of the people. State v. Boren, 36 Wn. (2d) 522, 219 P. (2d) 566, 20 A.L.R. (2d) 798 (1950). Because of the extremely dangerous and injurious effect of the unregulated use of narcotic drugs, “. . . We are also committed to allow the maximum scope of police power in the control of the illegal use of narcotic drugs. ...” Seattle v. Ross, 54 Wn. (2d) 655, 661, 344 P. (2d) 216 (1959).\nThe intention of the legislature, in the enactment of a regulatory measure, must be determined from a consideration of all of the provisions of the act. It is the duty of the court to adopt a construction of the statute that is reasonable, and in furtherance of the obvious and manifest purpose of the legislation. State v. Rinkes, 49 Wn. (2d) 664, 667, 306 P. (2d) 205 (1957), and case cited.\n The legislative purpose, in enacting the Uniform Narcotic Drug Act, was to curb illegal traffic in narcotic drugs, and to regulate and control their sale and distribution. The section here in question, when read in conjunction with the recording provisions of the act, is directed at a particular aspect of this general purpose, namely, to prevent a person with a seemingly legitimate complaint from obtaining an oversupply of narcotic drugs by using a different name and address in any number of physicians’ offices and/or pharmacies. To curtail such excessive use and the unlawful obtaining of narcotic drugs is well within the proper exercise of the police power of the state.\nThe respondent’s statement that his purpose for using a false name and address was “that he couldn’t get it by using his right name and address,” brings the facts of this case precisely within the purview of the statute.\n*234We conclude that, in enacting RCW 69.33.380(1) (d), the legislature did not intend that proof of reliance upon a false name and/or address by the doctor or pharmacist should be an element of the offense.\nThe judgment of dismissal is reversed.\nHill, Finley, Hunter, and Hale, JJ., concur.\n", "ocr": false, "opinion_id": 9790584 }, { "author_str": "Donworth", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDonworth,\nJ. (dissenting) — The majority have concluded that RCW 69.33.380(1) (d) merely augments RCW 69.33.300, relating to records to be kept in receiving and dispensing narcotics. Because of the reasons expressed in this opinion, I am compelled to reach a different conclusion.\nRCW 69.33.380(1) (d) was enacted by our legislature when it adopted the Uniform Narcotic Drug Act recommended by the commissioners on uniform state laws. The Uniform Narcotic Drug Act, 9B U.L.A., pp. 275-332, is divided into several sections. Section 9 is entitled “Record to be Kept.” Part of this section is quoted in the majority opinion and is found in RCW 69.33.300. Section 17 of the Uniform Narcotic Drug Act is entitled “Fraud or Deceit.” This section is codified as RCW 69.33.380.\nRCW 69.33.380(1) reads as follows:\n“No person shall obtain or attempt to obtain a narcotic drug, or procure or attempt to procure the administration of a narcotic drug, (a) by fraud, deceit, misrepresentation, or subterfuge; or (b) by the forgery or alteration of a prescription or of any written order; or (c) by the concealment of a material fact; or (d) by the use of a false name or the giving of a false address.”\nThe majority have isolated part (d) of subsection (1) from parts (a), (b) and (c), concluding that it is only a supplement to the recording provisions of RCW 69.33.300. Therefore, under the rationale of the majority, a violator is not to be punished for obtaining a narcotic drug by any surreptitious means, but rather the punishment is to be imposed for hindering a doctor or pharmacist in his record keeping.\nIn transposing this provision from the fraud and deceit section to that concerning record keeping, the majority *235cite People v. Oviedo, 106 Cal. App. (2d) 690, 235 P. (2d) 612 (1951). The statute under consideration by the California court was not copied from the Uniform Narcotic Drug Act.\nThe majority conclude that the California statute is indistinguishable in effect from the one under consideration in the instant case, stating that\n“ . . . the statute was a prohibition against the giving, rather than the use of a false name. We find this distinction to be without merit.”\nIn my opinion, the wrong portions of the two statutes have been emphasized.\nThe California statute provides:\n“ ‘No person shall, in connection with the prescribing, . . . or dispensing of any narcotic drug . . . give a false name or address.’ ”\nThe prohibition is directly against giving a false name, in connection with prescribing or dispensing a narcotic drug.\nRCW 69.33.380(1) (d) provides:\n“No person shall obtain ... a narcotic drug . . . by the use of a false name or the giving of a false address.”\nHere, the prohibition is directly against obtaining narcotic drugs in an illegal manner.\nIn each of the four subdivisions of RCW 69.33.380(1), the phrase obtain by introduces an illegal means of procuring narcotic drugs. Unless there is some causal connection between the activity enumerated in these subdivisions and the obtaining of a narcotic drug, the activity cannot be the means by which the drug is obtained.\nThe dismissal of the charge by the trial court was based upon the trial judge’s conclusion that the state had failed to prove that the narcotics were “obtained by the use of a false name or the giving of a false address,” in the sense that the false name or address was relied upon by the doctor and the pharmacist and could be said to have enabled respondent to obtain the narcotics. The issue (as framed by the briefs of both appellant and respondent) is whether reliance by the physician prescribing, or the phar*236macist dispensing, a narcotic drug, on the use of a false name or address given by respondent is a necessary element to be proved by the state in order to constitute a violation of ROW 69.33.380(1) (d). In other words, did the use of the false name and address cause respondent to obtain the narcotic drug?\nAt the trial on cross-examination of Dr. Pyfer by respondent’s counsel, the following testimony was elicited:\n“Now your diagnosis, then, and your ultimate prescription of this drug, was to curb whatever pain he did have? If he was to be believed, at least, it was for the pain? A. That is correct, from his history of pain from the injury, the recent injury of that morning. . . . Q. It is not true, Doctor, that you did not prescribe this demerol because Mr. Lee gave you a false name and address? That was not the reason you prescribed the drug, was it? A. No, it was not.”\nThe deputy prosecutor, in presenting his case, did elicit from Dr. Pyfer testimony that the narcotic prescription would not have been given had he known respondent’s true name. However, I think this testimony was adequately explained when Dr. Pyfer was called by defense counsel and testified as follows:\n“Q. Dr. Pyfer, yesterday a question was given you by the prosecutor asking if you would have given the defendant Lee the Prescription if you had known his real name. Do you recall that question? A. Yes, I do. Q. My question to you at this time is: why would you not have given him the prescription had you known his real name? A. In his chart we have records of non-payment of bills, and for this reason I would not have taken care of him.”\nClearly, this testimony could only mean that the doctor, if he had been informed as to the patient’s true name, would not have rendered any further service for respondent because he still owed the doctor for services previously rendered.\nState v. Powell, 212 Ore. 684, 321 P. (2d) 333 (1958), interpreted a statute which is identical to that under which respondent was charged. The Oregon court held that reliance on the false name or address is an element that must *237be present in order to constitute a violation of the statute. The court said:\n“The evidence in this case discloses that the doctor in prescribing the narcotic to the defendant on the 20th and 23rd of July put no reliance in the name or address of the defendant whatsoever but relied solely upon the defendant’s representations of her physical condition and his own examination of her condition. When she returned on the 25th of July, the doctor did not refuse her a prescription because of her name or the address, but because he had already prescribed more than was proper or necessary in the treatment of her condition. In other words, the defendant as a person and not because of name or address received the very narcotics intended by the doctor. Thus the false name or address was immaterial.”\nThe majority, in support of their position that no reliance is required, cite two cases also construing statutes indentical to the one before us. However, Geurin v. Nevada, 73 Nev. 233, 315 P. (2d) 965 (1957), only held that the false name and address need not be the sole motive and cause in the delivery of narcotics. State v. Newstead, 280 S. W. (2d) 6 (Mo. 1955), held that no causal connection was necessary when the defendant admitted the use of the false name for the purpose of obtaining a narcotic drug and actually obtained a narcotic drug. Whereas I agree that a defendant must intend to obtain a narcotic drug, I disagree with the Newstead case to the extent that it holds that no reliance on the false name by the person dispensing the narcotic drug is necessary.\nThe fact that both parties cite authority in support of their interpretation of this uniform statute indicates that there is a latent ambiguity in the statute. In such a situation, I cannot agree that a criminal statute can be properly construed in favor of appellant. As this court has had occasion to say in the past:\n“ . . . Laws are interpreted in favor of liberty, and if a statute is capable of two constructions, one of which makes a given act criminal and the other innocent, the statute will be given the construction which favors innocence.” State v. Anderson, 61 Wash. 674, 676, 112 Pac. 931 (1911).\n*238Accord: State v. Hardwick, 63 Wash. 35, 114 Pac. 873 (1911); State ex rel. Dorrien v. Hazeltine, 82 Wash. 81, 143 Pac. 436 (1914); State v. Furth, 82 Wash. 665, 144 Pac. 907 (1914); Huntworth v. Tanner, 87 Wash. 670, 152 Pac. 523 (1915); State v. Eden, 92 Wash. 1, 158 Pac. 967, 159 Pac. 700 (1916); State v. Levy, 8 Wn. (2d) 630, 113 P. (2d) 306 (1941).\nIn State v. Levy, supra, we said:\n“Conceding, however, for the sake of argument, that the sections of the statute above referred to might, according to the interpretation placed upon them by the trial court, be applicable to the instant situation, the result would simply be that a question of statutory construction would be presented concerning which judicial minds might radically, yet reasonably, differ. In such event, we are faced with the principle, universally recognized, that, in a criminal case, reasonable doubts upon questions of law, as well as upon questions of fact, must be resolved in favor of the accused. . . .”\nI would adopt the reasoning of the trial court that the statutory provision here in question requires reliance on a false name or address. The provision does not prohibit everyone from obtaining narcotics. It is designed to prevent those who are not justifiably entitled to receive narcotics from obtaining them by surreptitious means.\nThe trial judge gave this example of the type of situation which he considered that the particular subsection before us was intended to cover:\n“Let us take an example. Let us assume that the doctor has in his files a history that one Charles Allen requires demerol, and he had previously given a prescription to Charles Allen for the demerol, and Charles Allen calls and wants that prescription refilled, and Charles Lee goes in and represents himself as Charles Allen and the prescription is filled by the physician. This is what I think the statute contemplates.”\nUnder this interpretation of subsection (d), only those persons who actually obtain a narcotic drug by the means forbidden therein are violators. This interpretation is consistent with RCW 69.33.380(1), read in its entirety.\n*239In the case at bar, Dr. Pyfer, when asked, would not testify that respondent requested a narcotic drug. He did say that he prescribed the drug because of his own examination of respondent and the latter’s history of pain. There is no evidence to support a jury finding that Dr. Pyfer in any way relied upon the false name and address in prescribing the drug.\nIn my opinion, the state failed to prove an essential element of the crime charged in this case, to wit, reliance upon a false name or address. Without such reliance, the false name and address were immaterial. It was not the means by which the drug was obtained.\nI would affirm the trial court’s order of dismissal.\nWeaver, Rosellini, and Hamilton, JJ., concur with Donworth, J.\n", "ocr": false, "opinion_id": 9790585 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.courts.state.va.us/opinions/opnscvwp/1121232.pdf", "author_id": null, "opinion_text": "PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims,\n and Powell, JJ., and Russell, S.J.\n\nMAC R. CLIFTON, ET AL.\n OPINION BY\nv. Record No. 121232 SENIOR JUSTICE CHARLES S. RUSSELL\n September 12, 2013\nEVELYN ROSE WILKINSON\n\n FROM THE CIRCUIT COURT OF WASHINGTON COUNTY\n Isaac St. C. Freeman, Judge\n\n In this appeal we revisit the requirements for the creation\n\nof an easement by necessity. The question arises in the context\n\nof a parcel that became landlocked by the exercise of the power\n\nof eminent domain, followed by the construction of a limited-\n\naccess highway over the land condemned.\n\n FACTS AND PROCEEDINGS\n\n In 1957, special commissioners, appointed by the circuit\n\ncourt in a partition suit, conveyed to C. T. Wilkinson, Jr. an\n\n18.35-acre tract of land in Washington County. The tract\n\nadjoined Route 704, a public highway. In 1961, the State\n\nHighway Commissioner instituted a condemnation proceeding,\n\nacquiring a strip of land through the 18.35-acre tract for the\n\nconstruction of Interstate Highway I-81, a limited-access\n\nhighway. The taking for the highway contained 3.83 acres,\n\nleaving two residue parcels: a 4.88-acre parcel north of I-81\n\nthat retained frontage on Route 704 and a 9.64-acre parcel south\n\nof I-81 (the ten-acre parcel) that became landlocked as a result\n\nof the taking. The condemnation commissioners awarded C. T.\n\fWilkinson, Jr. $1450 for the land taken and $2450 for damages to\n\nthe residue property.\n\n After the condemnation, Mr. Wilkinson gained access to the\n\nten-acre tract for farming purposes by renting a neighboring 18-\n\nacre tract now owned by Mac R. Clifton, his wife Carol Clifton,\n\nand his sister, Beatrice Jones (the Cliftons). The Clifton\n\nproperty had access to Route 704. Mr. Wilkinson, with the\n\npermission of the Cliftons, used an unpaved lane across the\n\nClifton property to obtain access to his landlocked ten-acre\n\nresidue parcel. That arrangement continued for 45 years. In\n\n2006, Mr. Wilkinson discontinued farming and ceased to rent the\n\nClifton property. Mr. Wilkinson died in March 2007, and title\n\nto his property passed to his widow, Evelyn Rose Wilkinson (the\n\ncomplainant). In the fall of 2008, the Cliftons, having failed\n\nto reach an agreement with the complainant for a purchase of the\n\nten-acre parcel, terminated her permissive use of the access\n\nlane and blocked it.\n\n The complainant brought this action in the circuit court,\n\nseeking a declaratory judgment that she was entitled to use of\n\nthe access lane by reason of a prescriptive easement or, in the\n\nalternative, an easement by necessity. Complainant's counsel\n\nsubsequently withdrew the claim for a prescriptive easement and\n\nthe court received evidence relating to the claim for an\n\neasement by necessity.\n\n 2\n\f By a letter opinion, the court ruled that the complainant\n\nwas entitled to an easement by necessity over the access lane.\n\nThe court summarized the prerequisites for such an easement as:\n\n(1) common ownership of the dominant and servient tracts \"at\n\nsome time in the past,\" (2) the easement must be \"reasonably\n\nnecessary to the enjoyment of the land,\" which fact must be\n\nproved by clear and convincing evidence, and (3) there is no\n\nother means of access (to the landlocked parcel), even one less\n\nconvenient or more expensive to develop. Finding that the\n\ncomplainant had met those requirements, the court entered an\n\norder declaring that the complainant had a right of ingress and\n\negress over the access lane and enjoining any obstruction\n\nthereof. We awarded the Cliftons an appeal.\n\n ANALYSIS\n\n The dispositive question presented by this appeal is one of\n\nlaw. Accordingly, we apply a de novo standard of review.\n\nMulford v. Walnut Hill Farm Group, LLC, 282 Va. 98, 109, 712\n\nS.E.2d 468, 475 (2011).\n\n Implicit in the conclusion reached by the circuit court is\n\na finding that the Clifton property and the Wilkinson property\n\nwere, \"at some time in the past,\" owned by the same person. We\n\nfind no evidence in the record to support that finding. The\n\nissue whether such unity of title ever existed, however, is\n\nimmaterial in this case because the necessity for an easement of\n\n 3\n\fingress and egress did not arise when any such unity of title\n\nwas severed.\n\n Vast tracts of land in Virginia were at some time in the\n\npast held by a single individual, 1 and historic common ownership\n\nunderlies many, if not most, adjoining parcels today. That fact\n\nalone is not sufficient to justify an easement by necessity over\n\nneighboring lands to the owner of a parcel that becomes\n\nlandlocked by the exercise of the power of eminent domain.\n\n In this case, the necessity for an easement of ingress and\n\negress to the ten-acre parcel arose in 1961 when the State\n\nHighway Commissioner acquired 3.83 acres for the construction of\n\nan interstate limited-access highway. The Commissioner's\n\ndeclaration of taking, received as an exhibit in the present\n\n\n\n1\n The royal grant to the predecessors of Thomas, Lord Fairfax,\neffective in 1663, embraced approximately five million acres\ncomprising all the land between the Potomac and Rappahannock\nRivers from the Chesapeake Bay westward to a line connecting the\nsources of those rivers. See Fairfax's Devisee v. Hunter's\nLessee, 11 U.S. (7 Cranch) 603, 604 (1812); Maryland v. West\nVirginia, 225 U.S. 1, 10 (1912); O'Dell v. Stegall, 703 S.E.2d\n561, 570 (W. Va. 2010). See also David L. Ingram, The Virtual\nMuseum of Surveying, History of the Fairfax Line,\nhttp://www.surveyhistory.org/the_fairfax_line1.htm (last visited\nJuly 9, 2013). The \"Fairfax Line,\" connecting the sources of\nthe two rivers, was surveyed in 1746 by commissioners appointed\nby the Governor's Council in Williamsburg. Using magnetic\ncompass and chain, they ascertained its length to be\napproximately 76 miles. That linear distance was verified in\n1999 by surveyors using modern methods. The line forms several\ncounty boundaries and a part of the boundary between Virginia\nand West Virginia. Its northern point is the meeting point of\nthree counties in West Virginia. Id.\n 4\n\fcase, recites that the taking was made for the purpose of the\n\nconstruction of \"Route 81, a Limited Access Highway, as defined\n\nby 33-37, Code of Virginia of 1950.\" Code § 33-37, then in\n\neffect, provided:\n\n A limited access highway is defined as a\n highway especially designed for through\n traffic, over which abutters have no easement\n or right of light, air or access to by reason\n of the fact that their property abuts upon such\n limited access highway. 2\n\n\nTherefore, the ten-acre parcel became landlocked by the\n\nCommissioner's highway taking and not by any action taken by any\n\npresent or former owner of either the Clifton or the Wilkinson\n\nproperties or any common owner of both.\n\n Owners of property damaged by the exercise of the power of\n\neminent domain are entitled to just compensation by the self-\n\nexecuting provisions of Article I, Section 11 of the\n\nConstitution of Virginia. Gray v. Virginia Sec'y of Transp.,\n\n276 Va. 93, 104, 662 S.E.2d 66, 72 (2008). Thus, C. T.\n\nWilkinson, Jr. sought and received an award of damages in the\n\n1961 condemnation proceeding to compensate him for the\n\n\n\n\n2\n Former Code § 33-37 was repealed effective October 1, 1970.\nSee 1970 Acts ch. 322. The statutory language is identical to\nthe language now appearing in Code § 33.1-57, which has been in\neffect since October 1, 1970.\n 5\n\fdiminution in the value of his residue property caused by the\n\ntaking.\n\n A right of way by necessity arises from an\n implied grant or implied reservation. Stated\n differently, it is an easement implied upon a\n conveyance of real estate. To establish such a\n right, the alleged dominant and servient tracts\n must have belonged to the same person at some\n time in the past. The right is based upon the\n idea that whenever one conveys property, he\n conveys that which is necessary for the\n beneficial use of the land and retains that\n which is necessary for the beneficial use of the\n property he still possesses.\n\n Thus, in the case of an implied grant, an\n easement is acquired by a grantee over the\n grantor's property when the land conveyed is\n either entirely surrounded by property of the\n grantor or else is bordered in part by the land\n of a stranger and in part by lands of the\n grantor. Under either situation, the grantee\n obtains a way of necessity over the grantor's\n property because otherwise the land conveyed\n would be inaccessible and useless.\n\nMiddleton v. Johnston, 221 Va. 797, 802-03, 273 S.E.2d 800, 803\n\n(1981) (citations omitted).\n\n Although we stated above that both tracts \"must have\n\nbelonged to the same person at some time in the past,\" the\n\ncontext makes clear that an easement by necessity arises only\n\nwhen the grantor of the dominant tract conveys it to another\n\nwithout providing any right of access to it. It does not arise\n\nwhen a former unity of title has been severed between two tracts\n\nwithout impairing any right of access to either tract.\n\n\n\n 6\n\f We made this distinction explicit in American Small\n\nBusiness Investment Co. v. Frenzel, 238 Va. 453, 456, 383 S.E.2d\n\n731, 734 (1989):\n\n A right of way by necessity is based on the\n theory that when a grantor conveys property he\n does so in a manner which will allow beneficial\n use of both the property he conveys as well as\n any property he retains. This type of easement\n arises from an implied grant or implied\n reservation. It is essential to this theory\n that the necessity arise simultaneously with\n the conveyance. If the conveyance does not\n preclude the beneficial use of either the\n property conveyed or the property retained, an\n implied grant or reservation is unnecessary.\n The necessity cannot arise subsequent to the\n conveyance because \"the necessity referred to\n is the subjective necessity of the inference\n that the parties so intended at the time of the\n grant\" or reservation.\n\n To establish a right of way by necessity\n certain conditions must be met. First, the\n land must have been under common ownership at\n some time and this unity of title must have\n been severed. The severance must have given\n rise to the need for the right of way.\n\n(Citations omitted, emphasis in original.)\n\n CONCLUSION\n\n Because the ten-acre tract did not become landlocked by a\n\nconveyance from a former owner severing a former unity of title,\n\nno implied grant of a right of ingress and egress arose.\n\nTherefore, a former common ownership of the dominant and\n\nservient tracts, if such unity existed in the past, is\n\nimmaterial. The ten-acre tract suffered damages by the taking\n\n\n 7\n\fof its access rights by eminent domain. Those damages were\n\ncompensable in the condemnation proceeding in 1961, but did not\n\ngive rise to any implied grant of access rights over the lands\n\nof others.\n\n For the foregoing reasons, we will reverse the judgment of\n\nthe circuit court and enter final judgment here for the\n\nCliftons.\n\n Reversed and final judgment.\n\n\n\n\n 8\n\f", "ocr": false, "opinion_id": 1057725 } ]

[ "305 U.S. 297", "59 S. Ct. 170", "83 L. Ed. 182", "1938 U.S. LEXIS 456" ]

[ { "author_str": "Roberts", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2739, "opinion_text": "\n305 U.S. 297 (1938)\nNEBLETT ET AL.\nv.\nCARPENTER, INSURANCE COMMISSIONER, ET AL.\nNo. 21.\nSupreme Court of United States.\nArgued October 18, 1938.\nDecided December 5, 1938.\nCERTIORARI TO THE SUPREME COURT OF CALIFORNIA.\n*298 Mr. Wm. H. Neblett, with whom Messrs. R. Dean Warner and Vernon Bettin were on the brief, for petitioners.\nMr. Wm. Marshall Bullitt and Miss Hester W. Webb, with whom Messrs. U.S. Webb, Attorney General of *299 California, and Perry Price were on the brief, for respondents.\nMessrs. T.B. Cosgrove, John N. Cramer, Josiah E. Brill, George I. Cochran, and H.S. Dottenheim were on several briefs for individual respondents.\nMR. JUSTICE ROBERTS delivered the opinion of the Court.\nThe questions raised are whether proceedings for the rehabilitation of an insurance company, pursuant to the Insurance Code of California,[1] unconstitutionally deprive policy holders of their property without due process of law, or impair the obligation of their contracts.[2]\nFor many years the Pacific Mutual Life Insurance Company of California has written life, health, and accident insurance. Since 1918 it has issued noncancelable health and accident policies. The Insurance Commissioner of California determined that, while the life and general health and accident business was in sound condition, there was an over-all deficit in reserves due to the unprofitable nature of outstanding noncancelable health and accident risks, with the result that the company was insolvent within the meaning of the Code. July 22, 1936, the Superior Court of Los Angeles County, on his application, appointed him conservator. On the same day he applied for and obtained an order which appointed him liquidator of the company. On the same day, as conservator, he petitioned for authority to rehabilitate *300 the company and submitted a plan embodying an agreement, to be executed by the company and himself as Commissioner, with a new corporation, which he would form, all of whose capital stock he would purchase with the assets of the company, and to which he would transfer most of the assets, retaining the stock of the new company and certain other assets of the old. The new company was to assume the policies and obligations of the old company to the extent provided in the agreement. Policy holders were to have the option of taking insurance from the new company or proving their claims for breach of their contracts, provision for payment being made by covenants of the new company and the retained assets of the old. The court approved the plan and authorized the execution and performance of the agreement.\nShortly afterwards it was discovered that the judge who acted in the cause was probably disqualified by ownership of a policy issued by the company. August 11, 1936, another judge entered an order, which, after adverting to the possible disqualification of the judge who made the earlier orders, ratified, approved, and confirmed the order appointing the Commissioner conservator and, on the basis of the petition filed on July 22, independently, and as an original order, appointed the Commissioner conservator, invested him with title to all the company's assets, and authorized him to endeavor to consummate a rehabilitation or reinsurance plan. On September 25 the Commissioner presented a further petition for approval of the rehabilitation and reinsurance agreement, which recited his actions taken pursuant to the court's orders and to the plan of rehabilitation, and asked approval thereof. An order issued which directed all interested persons to show cause why the agreement, and what had been done pursuant to it, should not be approved and all the prior acts of the Commissioner ratified and confirmed, and fixed a hearing. At the hearing, *301 which lasted from October 19 to December 4, many officers, stockholders and policy holders who had intervened, including the petitioners, were heard. Plans of rehabilitation presented by some of them were considered; evidence was taken and argument was had. December 4 an order was entered approving the Commissioner's plan and agreement, ratifying the action he had taken, and authorizing him as conservator, and as liquidator, if he should be appointed as such, to carry out the rehabilitation agreement. The court retained jurisdiction to make further orders for the effectuation of the plan and agreement.\nThe Supreme Court of California affirmed the order.[3] The action of that court in overruling certain of petitioners' contentions is claimed to have deprived them of their property without due process.\nThe court declared that the orders of July 22, 1936, were void because of the disqualification of the judge who made them. The petitioners argue that in consequence the Commissioner's transfer of assets to a new company pursuant to the approved plan was void and that its illegality could not be cured by subsequent court action. The Supreme Court held, however, that the court in which the Commissioner's original petition was filed thereby acquired jurisdiction and that the avoidance of the orders made by the disqualification of the judge who entered them did not disenable a qualified judge thereafter from entering valid orders based on the petition. It is further urged that as the old company's assets were transferred to the new pursuant to a void order there was nothing on which any later order could operate. The later order, which is the subject of review, ratified and confirmed the transfer, and the Supreme Court held the order effective under the Insurance Code.\n*302 It is said that the Code does not authorize the Commissioner to delegate to a corporation organized by him powers and duties in aid of his administration of the assets of an insolvent insurance company. The state court has held such procedure is in accordance with the Code provisions.\nIt is argued that the authority which the Code confers on the Commissioner to enter into rehabilitation or reinsurance agreements does not embrace a contract for assumption of the insolvent company's policies by a new company organized by the Commissioner. The court below held the provisions of the statute contemplated such action.\nIt is claimed that the Commissioner's action violated certain state statutes concerning fraudulent conveyances. The state court held the contrary.\nAll of these holdings concern matters of state law and amount at most to alleged erroneous constructions of the State's statutes by its own court of last resort. Such decisions would not be a denial of the due process guaranteed by the Fourteenth Amendment.[4] We are, therefore, without jurisdiction to review the state court's decision of any of those questions.\nIt is argued that the Code unconstitutionally delegates legislative functions to the Commissioner, and that the Supreme Court erred in not so holding. This, again, is a question of state law the decision of which by the State's highest court is binding upon us.[5]\nThe Insurance Code provides: \"In any proceeding under this article, the commissioner, as conservator . . . *303 may, subject to the approval of said court, . . . mutualize or reinsure the business of\" an insurance company \"or enter into rehabilitation agreements.\" The petitioners assert that this language is so vague that no one can determine what powers are intended to be conferred upon the Commissioner and that the state courts, in construing the Code to authorize the plan and procedure here in question unconstitutionally attempted to read a meaning into the statute of which it is not susceptible, and thus deprived the petitioners of their property without due process. The court below fully considered the contention and overruled it. We think its decision was justified by the criteria approved by this court.[6]\nThe petitioners unsuccessfully claimed in the Supreme Court that the method of liquidation adopted by the Commissioner and approved by the court, even if authorized by the Insurance Code, denies them due process and impairs the obligation of their policy contracts. Because of these contentions we granted certiorari.\nOne of the petitioners holds a life policy which, if he assents to the plan, will be replaced by a policy of the new company for the same amount. The others are holders of noncancelable health and accident policies no liability under which has accrued. If they assent to the plan and accept the obligation of the new company, in lieu of that of the old, they will receive insurance for only a percentage of the face value of their old policies. The alternative open to all is to dissent from the plan and to prove their claims for breach of their policy contracts against the liquidator of the old company. They insist this option is not available to them as no liquidator has been appointed. When they took their appeal to the State Supreme Court, there was pending an application for the appointment of the Commissioner as liquidator, *304 and no reason is assigned why action cannot be taken upon this petition pursuant to the plan. The Supreme Court has said: \"The proposal contemplates that in due course the commissioner will be appointed liquidator of the old company, and in that capacity will receive, liquidate, and pay all claims against the old company from the old company's assets not transferred to the new company (including the new company's stock), and from certain moneys furnished to the liquidator by the new company as provided in the agreement.\" 10 Cal. 2d 307, 322; 74 P.2d 761, 771. The petitioners assert that the funds provided will be insufficient for the payment of their claims and others of like character, should they dissent from the plan. The order of the Superior Court recites that the plan makes adequate provision for each class of policy holders, for the creditors, and for the stockholders; that the plan is fair and equitable; that it does not discriminate unfairly or illegally in favor of any class of policy holders; that the intangible assets conserved by the plan are worth several million dollars and that if the old company were dissolved and its assets sold their value would be substantially less than the amount which will be realized from them under the plan.\nThe record upon which the appeal was taken to the Supreme Court of the State, and which has been brought here by our writ, contains only the judgment roll. The evidence is not before us and the court below has held that, under the state law, the judge was not bound to make special findings. We must presume that there was substantial evidence to sustain the court's decree. On account of the state of the record the petitioners are unable to point to any evidence to sustain their contention that if they dissent they will not receive as much in liquidation of their claims for breach of their policy contracts as they would upon a sale of assets and distribution of the proceeds.\n*305 The petitioners have no constitutional right to a particular form of remedy.[7] They are not entitled, as against their fellows who prefer to come under the plan and accept its benefits, to force, at their own wish or whim, a liquidation which under the findings will not advantage them and may seriously injure those who accept the benefit of the plan. They are not bound, as were the dissenting creditors in Doty v. Love, 295 U.S. 64, to accept the obligation of the new company but are afforded an alternative whereby they will receive damages for breach of their contracts. They have failed to show that the plan takes their property without due process.\nIt is not contended that a statutory scheme for the liquidation of an insolvent domestic corporation is per se an impairment of the obligation of the company's contracts. The argument is that the impairment of contract arises from the less favorable terms and conditions of the new noncancelable policies which are to be substituted for the old ones and, in the case of the life policies, by the substitution of a new company as contractor in place of the old, without the consent of the policy holder. This position is bottomed upon the theory that the policy holders are compelled to accept the new company as insurer on the terms set out in the rehabilitation agreement. As has been pointed out, they are not so compelled but are given the option of a liquidation which on this record appears as favorable to them as that which would result from the sale of the assets and pro rata distribution in solution of all resulting claims for breach of outstanding policies.\nJudgment affirmed.\nMR. JUSTICE REED took no part in the consideration or decision of this case.\nNOTES\n[1] Statutes 1935, c. 145, pp. 540-553. The sections of the Insurance Code bearing upon the issues in the case are 1011-16, inclusive, 1021, 1024, 1025, 1035, 1037, 1043.\n[2] In the court below contentions were made under the equal protection clause of the Fourteenth Amendment but neither the reasons stated in support of the petition nor the assignments of error in this court present any question under that clause.\n[3] Carpenter v. Pacific Mutual Life Ins. Co., 10 Cal. 2d 307; 74 P.2d 761.\n[4] Arrowsmith v. Harmoning, 118 U.S. 194, 196; Central Land Co. v. Laidley, 159 U.S. 103, 112; Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 393; West v. Louisiana, 194 U.S. 258, 261; Standard Oil Co. v. Missouri, 224 U.S. 270, 287; McDonald v. Oregon R. & N. Co., 233 U.S. 665, 669; American Ry. Exp. Co. v. Kentucky, 273 U.S. 269, 273.\n[5] Ohio v. Akron Park District, 281 U.S. 74, 79.\n[6] Connally v. General Construction Co., 269 U.S. 385, 391.\n[7] Gibbes v. Zimmerman, 290 U.S. 326, 332; Doty v. Love, 295 U.S. 64, 70.\n\n", "ocr": false, "opinion_id": 103106 } ]

[ "937 So. 2d 129" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n937 So.2d 129 (2006)\nBARBER v. STATE.\nNo. 2D06-904.\nDistrict Court of Appeal of Florida, Second District.\nJune 23, 2006.\nDecision without published opinion. Affirmed.\n", "ocr": false, "opinion_id": 1100658 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0061-7", "author_id": 687, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n )\nCAPTAIN GERRY SCOTT, )\n )\n Plaintiff, )\n )\n v. ) Civil Action No. 09-61 (RMC)\n )\nDISTRICT OF COLUMBIA, )\n )\n )\n Defendant. )\n )\n\n MEMORANDUM OPINION\n\n Gerry Scott, a D.C. Metropolitan Police officer, brought this suit against the District\n\nof Columbia asserting that he was erroneously placed on leave without pay resulting in disciplinary\n\naction. His suit alleges a claim under the First Amendment as well as various claims under state law.\n\nThe District moves to dismiss for failure to state a claim. Because the Complaint fails to state a\n\nconstitutional claim and because the D.C. Comprehensive Merit Protection Act (“CMPA”), D.C.\n\nCode §§ 1-601.01 et seq., provides an exclusive remedy for the state law claims, the motion to\n\ndismiss will be granted.\n\n I. FACTS\n\n Captain Scott alleges that while he was assigned as evening watch commander for the\n\nsecond district, he discovered that his annual leave balance was low. Compl. ¶ 3. Upon\n\ninvestigation, he found that he had been placed on leave without pay (“LWOP”) on various occasions\n\nwhen he had actually been at work. Id. ¶ 4. He alleges that he attempted to correct his work\n\nattendance records but that he was unsuccessful and he was subjected to disciplinary action. Id.\n\n¶¶ 6-8. Based on these facts, Captain Scott brought a four count Complaint against the District of\n\fColumbia alleging the following causes of action:\n\n Count I – violation of the First Amendment via 42 U.S.C. § 1983;\n\n Count II – breach of contract;\n\n Count III – negligence; and\n\n Count IV – intentional infliction of emotional distress.\n\nCompl. ¶¶ 11-27.1 Captain Scott seeks both compensatory and punitive damages.\n\n The Complaint was filed in D.C. Superior Court on December 9, 2008, and the\n\nDistrict removed the case to this Court on January 12, 2009. The District now moves to dismiss for\n\nfailure to state a claim; Captain Scott opposes. As explained below, the motion to dismiss will be\n\ngranted.\n\n II. LEGAL STANDARD\n\n A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges\n\nthe adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim.\n\nFederal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement\n\nof the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A complaint must\n\nbe sufficient “to give a defendant fair notice of the claims against him.” Bell Atl. Corp. v. Twombly,\n\n127 S. Ct. 1955, 1964 (2007). Although a complaint does not need detailed factual allegations, a\n\nplaintiff’s obligation to provide the grounds of his entitlement to relief “requires more than labels\n\nand conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at\n\n\n 1\n In its opening paragraph, the Complaint states, “Now comes Captain Gerry Scott . . . with\na complaint alleging violations of (1) First Amendment; (2) Fourth Amendment; (3) Abuse of\nProcess; (4) Malicious Prosecution; (5) Breach of Contract; and (6) Intentional Infliction of\nEmotional Distress.” Because the body of the Complaint does not articulate Fourth Amendment,\nabuse of process, or malicious prosecution claims, or facts that might support such claims, the Court\ntreats the inclusion of these claims as inadvertent error and disregards them.\n\n -2-\n\f1964-65 (internal citations omitted). Rule 8(a) requires a “showing” and not just a blanket assertion\n\nof a right to relief. Id. at 1965 n.3.\n\n In considering a motion to dismiss, a court must treat the complaint’s factual\n\nallegations as true, “even if doubtful in fact,” id. at 1965, and must draw all reasonable inferences\n\nin the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003). Even so,\n\nthe facts alleged “must be enough to raise a right to relief above the speculative level,” Twombly, 127\n\nS. Ct. at 1965, and the court need not accept as true inferences unsupported by facts set out in the\n\ncomplaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242\n\n(D.C. Cir. 2002). “[A] complaint needs some information about the circumstances giving rise to the\n\nclaims.” Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)\n\n(emphasis in original).\n\n In deciding a Rule 12(b)(6) motion, the Court may consider only “the facts alleged in\n\nthe complaint, documents attached as exhibits or incorporated by reference in the complaint, and\n\nmatters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d\n\n191, 196 (D.D.C. 2002) (citation omitted). Once a claim has been stated adequately, “it may be\n\nsupported by showing any set of facts consistent with the allegations in the complaint.” Twombly,\n\n127 S. Ct. at 1968-69.\n\n III. ANALYSIS\n\n Captain Scott asserts that he is entitled to relief under 42 U.S.C. § 1983 due to the\n\nDistrict’s alleged violation of his rights under the First Amendment to the U.S. Constitution. To\n\nprevail in a civil rights action under 42 U.S.C. § 1983, a plaintiff must plead and prove that the\n\ndefendant, acting under color of state or D.C. law, deprived the plaintiff of a right secured by the\n\n\n\n -3-\n\fConstitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor,\n\n451 U.S. 527 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).\n\nFor any action under § 1983, a court must address the threshold question of “whether the plaintiff\n\nhas alleged the deprivation of a constitutional right at all.” Baker v. McCollan, 443 U.S. 137, 146-47\n\n(1979).\n\n In order to state a claim for retaliation in violation of the First Amendment, a plaintiff\n\nmust prove: (1) that he is a public employee who spoke as a citizen on a matter of public concern;\n\n(2) that his interest under the First Amendment is not outweighed by the government’s interest in\n\npromoting efficient public service; (3) that his speech was a substantial or motivating factor for the\n\ndenial of a right or benefit; and (4) that the government would not have reached the same conclusion\n\nabsent the protected conduct. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007); see also\n\nGarcetti v. Ceballos, 547 U.S. 410, 418 (2006).\n\n The only speech that Captain Scott mentions in his Complaint is a grievance he filed\n\nchallenging the erroneous time entries.2 However, expressions of personal dissatisfaction by a\n\ndiscontented employee do not amount to matters of public concern. Murray v. Gardner, 741 F.2d\n\n434, 438 (D.C. Cir. 1984); see also Connick v. Myers, 461 U.S. 138, 145 (1983) (district attorney\n\nwho circulated a document complaining about office management and objecting to her transfer was\n\nnot speaking on a matter of public concern). The facts alleged “must be enough to raise a right to\n\nrelief above the speculative level,” Twombly, 127 S. Ct. at 1965, and the court need not accept as true\n\ninferences unsupported by facts set out in the complaint or legal conclusions cast as factual\n\n\n 2\n The Complaint implies that he filed a grievance as follows: “Although his complaint\ninvolved his command structure’s failure to properly maintain his record, his immediate commander\ninvestigated his complaint that the stress caused by the situation was a duty related injury.” Compl.\n¶ 8.\n\n -4-\n\fallegations. Browning, 292 F.3d at 242. The accuracy of Captain Scott’s time entries is not a matter\n\nof public concern. Because the Complaint fails to state a claim under the First Amendment, the First\n\nAmendment claim must be dismissed. Without a constitutional claim, Captain Scott has failed to\n\nstate a § 1983 claim.3\n\n The remaining counts of the Complaint, alleging breach of contract, negligence, and\n\nintentional infliction of emotional distress, all arise from an employment dispute concerning the\n\nalleged erroneous LWOP records. These claims must be dismissed due to failure to exhaust\n\nadministrative remedies because they are governed by the CMPA , D.C. Code §§ 1-601.01 et seq.\n\nThe CMPA establishes a merit personnel system for District employees through which employee\n\ngrievances and adverse personnel actions are handled. Id. § 1-605.02. The CMPA covers\n\n“grievances” which include “any matter under the control of the District government which impairs\n\nor adversely affects the interest, concern, or welfare of employees.” Id. § 1-603.01(10). The CMPA\n\nwas intended “to create a mechanism for addressing virtually every conceivable personnel issue”\n\nbetween the District and its employees. Lattisaw v. District of Columbia, 905 A.2d 790, 793 (D.C.\n\n2006). “With few exceptions, the CMPA is the exclusive remedy for a District of Columbia public\n\n\n\n 3\n Plaintiff’s opposition to the motion to dismiss attempts to assert another constitutional claim\nby alleging that the “seizure of his earned leave . . . [runs] afoul of his Fourth Amendment Property\nRights.” Pl.’s Opp’n at 7. The Fourth Amendment provides that the “right of the people to be secure\nin their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not\nbe violated.” U.S. Const. amend. IV. The amendment establishes “rules and presumptions designed\nto control conduct of law enforcement officers that may significantly intrude upon privacy interests.”\nIllinois v. McArthur, 531 U.S. 326, 330 (2001). It simply does not apply to Captain Scott’s\nworkplace grievance seeking correction of his time records. Further, even if Captain Scott had stated\na constitutional claim, he has not stated a § 1983 claim. In order to state a § 1983 claim against a\nmunicipality, a plaintiff must assert that the municipality, through an official custom, practice, or\npolicy, caused the alleged constitutional violation. Monell v. Dep’t of Social Servs., 436 U.S. 658,\n690-95 (1978); Triplett v. Dist. of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997). Captain Scott\nhas made no such allegation.\n\n -5-\n\femployee who has a work-related complaint of any kind.” Baker v. District of Columbia, 785 A.2d\n\n696, 697 (D.C. 2001). Thus, “when tort claims are predicated upon conduct that may be a proper\n\nsubject of a grievance under the CMPA,” the CMPA precludes litigation until administrative\n\nremedies are exhausted. Washington v. Dist. of Columbia, 538 F. Supp. 2d 269, 279 (D.D.C. 2008).\n\nIn Washington, the court dismissed claims for defamation and emotional distress due to the plaintiffs’\n\nfailure to exhaust such claims under the CMPA. Id. at 279-80.\n\n Captain Scott is a D.C. employee subject to the CMPA, and his claim concerning the\n\nerroneous reporting of his time records is a work-related grievance that falls under the CMPA.\n\nBecause Captain Scott failed to exhaust his administrative remedies under the CMPA, his claims for\n\nbreach of contract, negligence, and intentional infliction of emotional distress will be dismissed.4\n\n In his opposition to the motion to dismiss, Captain Scott contends that the motion to\n\ndismiss is an improper “collateral attack” and that the Complaint sufficiently sets forth the claims\n\nfor relief. Pl.’s Opp’n [Dkt. # 5] ¶¶ 16 & 19. As explained above, the Complaint fails to state a\n\nclaim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The\n\nComplaint does not assert that Captain Scott was retaliated against based on speech related to a\n\n\n\n 4\n Some courts have not required a plaintiff to exhaust administrative remedies where the\nplaintiff seeks punitive damages, reasoning that an administrative remedy would not be adequate.\nSee, e.g., Crockett v. D.C. Metro. Police Dep’t, 293 F. Supp. 2d 63, 67 (D.D.C. 2003); but see Payne\nv. Dist. of Columbia, Civ. No. 08-163, 2008 WL 5401532, *8 (D.D.C. Dec. 30, 2008) (mere demand\nfor punitive damages does not show CMPA’s procedures are inadequate). While the Complaint in\nthis case asserts a claim for punitive damages, such damages are generally not available against the\nDistrict. Feirson v. Dist. of Columbia, 315 F. Supp. 2d 52, 57 (D.D.C. 2004) (a plaintiff cannot\nrecover punitive damages against the District on a § 1983 claim); Barnes v. Gorman, 536 U.S. 181,\n187 (2002) (punitive damages are not available for breach of contract); Butera v. Dist. of Columbia,\n235 F.3d 637, 658 (D.C. Cir. 2001) (punitive damages are generally unavailable against\nmunicipalities such as the District of Columbia except where there are extraordinary circumstances).\nCaptain Scott’s conclusory demand for punitive damages does not exempt him from the requirements\nof administrative exhaustion.\n\n -6-\n\fmatter of public concern and thus does not state a First Amendment claim. Also, the exclusive\n\nremedy for Captain Scott’s complaint about his LWOP time entries lies under the CMPA, and not\n\nunder state law regarding breach of contract or tort.\n\n Captain Scott further opposes the motion to dismiss by claiming that the District\n\nshould be defaulted for failure to timely respond to the Complaint. Plaintiff contends that he\n\nproperly served the District on December 12, 2008, and that the District should have responded by\n\nDecember 31, 2008. The District did not respond to the Complaint until it removed the case to this\n\nCourt on January 12, 2009, and filed a motion to dismiss on January 21, 2009.\n\n Plaintiff erroneously assumes that the District’s response to the Complaint was due\n\n20 days after service. Pursuant to the rules of the District of Columbia Superior Court, the District\n\nhad 60 days to answer after service. SCR-Civil 12(a)(3)(A). And by statute, the District had 30 days\n\nto remove the case to federal district court. 28 U.S.C. § 1446(b). The District received the Summons\n\nand Complaint on December 12, 2008 and removed the case to this Court within 30 days, on January\n\n12, 2009. Default for lack of timely response is not warranted.\n\n Moreover, the District points out that while it received the complaint on December\n\n12, service was not proper under the applicable Superior Court rules. Under those rules, service on\n\nthe District of Columbia is achieved by delivering a copy of the summons and complaint to the\n\nMayor (or designee) and to the D.C. Office of the Attorney General (or designee). SCR-Civil\n\n4(j)(1). Captain Scott did not personally serve either the Mayor or the D.C. Attorney General.\n\nInstead, he sent the Summons and Complaint by certified mail. Where certified mail is permitted,\n\nservice must comply with all other provisions of Rule 4, see SCR-Civil 4(l), and thus if the return\n\nreceipt is not signed by the party named in the summons, the affidavit for certified mail must include\n\n“specific facts from which the Court can determine that the person who signed the receipt meets the\n\n -7-\n\fqualifications for receipt of process.” SCR-Civil 4(l)(2). Thus, to show proper service, Captain\n\nScott would have to show that the Mayor and the D.C. Attorney General, or their respective\n\ndesignees, signed the return receipts. “M. Smith” signed the return receipt on behalf of the Mayor;\n\nno one by that name is designated to receive service on the Mayor’s behalf. Compare Pl.’s Opp’n\n\nEx. 2 with Def.’s Reply, Ex. A. “M. Anderson” signed the return receipt on behalf of the Attorney\n\nGeneral; no one by that name is designated to receive service on the D.C. Attorney General’s behalf.\n\nCompare Pl.’s Opp’n Ex. 3 with Def.’s Reply, Ex. B.\n\n Default cannot be entered where there was insufficient service of process. Although\n\ndefault may be entered upon a defendant’s failure to plead or otherwise defend, Fed. R. Civ. P. 55(a),\n\na defendant’s obligation to respond to a complaint arises only upon service of the summons and\n\ncomplaint. Fed. R. Civ. P. 12(a). Because service on the District was not sufficient, its obligation\n\nto plead or otherwise respond had actually not arisen. Even so, the District removed the case to\n\nfederal court within the appropriate 30-day removal period and shortly thereafter moved to dismiss.\n\nDefault is not proper under these circumstances.\n\n IV. CONCLUSION\n\n For the foregoing reasons, the District’s motion to dismiss [Dkt. # 2] will be granted\n\nand this case will be dismissed. A memorializing order accompanies this Memorandum Opinion.\n\n\n\n\nDate: February 20, 2009 __________/s/______________________________\n ROSEMARY M. COLLYER\n United States District Judge\n\n\n\n\n -8-\n\f", "ocr": false, "opinion_id": 2668619 } ]

[ "225 Cal. App. 2d 108" ]

[ { "author_str": "Agee", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6303, "opinion_text": "\n225 Cal. App. 2d 108 (1964)\nROGER J. COOPER et al., Plaintiffs and Respondents,\nv.\nMART ASSOCIATES, Defendant, Cross-complainant and Appellant; ARMSTRONG CORK COMPANY, Defendant, Cross-complainant and Respondent.\nCiv. No. 21008. \nCalifornia Court of Appeals. First Dist., Div. Two. \nFeb. 24, 1964.\n Boyd, Flageollet & Benson, Boyd, Benson & Gregory and Herbert Chamberlin for Defendant, Cross-complainant and Appellant.\n Bronson, Bronson & McKinnon and Harold R. McKinnon for Plaintiffs and Respondents.\n O'Connor, Moran, Cohn & Lynch, Harold H. Cohn and George Olshausen for Defendant, Cross-complainant and Respondent.\n AGEE, J.\n Defendant Mart Associates is the master-lessee of the Western Merchandise Mart, a 10-story block-square building fronting on Market Street, in San Francisco. Some 500 tenants rent from Mart, about 75 of which are on the second floor. The spaces rented are used for the purpose of displaying and selling furniture, home equipment and related goods.\n On the night of August 5, 1958, a fire occurred on the second floor. The plaintiffs in this ensuing damage action are 22 second-floor tenants and 3 insurance subrogees. Armstrong Cork is the second-floor tenant of the space in which the fire originated. It was named in plaintiffs' complaint as a defendant and it cross-complained against defendant Mart. Plaintiffs were nonsuited as against Armstrong on the ground that there was no evidence of negligence on its part.\n The cause of the fire could not be determined and the trial court instructed the jury that, in considering the issue of *112 Mart's negligence, it was restricted to the question of whether Mart had negligently allowed the fire to spread after it had started.\n The jury returned a general verdict against Mart in favor of all plaintiffs on their complaint and in favor of Armstrong on its cross- complaint against Mart. Mart appeals from the judgment entered thereon. No issue is made as to the amounts of the respective awards.\n [1a] At Mart's request, a form of special verdict was submitted to the jury. The first interrogatory was general and is as follows: \"Was defendant Mart Associates negligent in some manner which was a cause of the spread of the fire?\" The jury's answer was \"Yes.\"\n Six specific interrogatories followed, to be answered only if the answer to the above general interrogatory was \"Yes.\" The answer was \"Yes\" to the following specific interrogatory: \"Was the spread of the fire caused by a failure of Walter Little [night watchman] to enter and inspect the interior of the Armstrong Cork premises?\"\n All of the remaining specific interrogatories except one were answered with a \"No.\" [2] As to that one, the answer was \"Undecided because of contradictory testimony.\" The burden of proving the affirmative of the issue embodied in that interrogatory was upon respondents and therefore the answer given by the jury had the same legal effect as an answer in the negative.\n [1b] By these five negative answers, the jury found that the spread of the fire from the Armstrong Cork premises was not caused (1) by a failure of Mart to construct the glass partitions all the way to the ceiling, or (2) by a delay of John Anderson (janitor) in reporting the fire to Walter Little, or (3) by a delay of Walter Little in reporting the fire to the fire department, or (4) by a failure of John Anderson to use the fire extinguisher and fire hose, provided by the building, after he first discovered the fire, or (5) by a failure of Walter Little to use such fire extinguisher and fire hose after the fire was reported to him. As to (3) above, the jury added: \"There was no delay after he became aware of the fire.\"\n Respondents point out that the general finding of negligence may be supported by any evidence of negligence in the record on which no finding was made by the special verdicts. (Hudgins v. Standard Oil Co., 136 Cal. App. 44, 50 [28 P.2d 433].) However, it is unnecessary to discuss this in view of our conclusion that the following question must be answered in the affirmative. *113\n Is there substantial evidence to support the jury's finding that the spread of the fire was caused by night watchman Little's failure to enter and inspect the interior of the Armstrong premises?\n There were two fires on the night of August 5, 1958. The first occurred about 9:30. Janitress de la Fuente detected smoke in the space occupied by Armstrong Cork. She summoned Little and turned on the lights. He inspected the premises and called the fire department. It arrived in six minutes.\n The firemen discovered that the smoke was coming from some smoldering rugs which were hung fan-like from the ceiling, just below some recessed lights. They removed two of these rugs and wetted them down. This took about five minutes. On leaving the premises, Battalion Chief Dillon told Little that he thought that \"everything was all right, but if he [Little] was uncertain about anything, to give us a call immediately.\"\n Janitress de la Fuente testified that, after everyone had gotten out, she turned off all of the Armstrong lights and left the windows and door open in order to \"get the place ventilated\"; that she was directed to do this by head janitor Spingola; that she then resumed work in another area of the second floor.\n Little made two trips back to the second floor. He testified that he \"was worried\" and wanted to check for smoke and \"to see if anything was reoccurring\"; that his first trip was about 10 p.m.; that he could smell smoke but he did not enter the Armstrong space; that there were no lights on inside there; that he just stayed in the corridor outside and peeked in; that after taking this peek he went back to his desk in the lobby on the first floor.\n Little testified that he again went up about 10:35 p.m.; that he \"went through the same thing\"; that he smelled smoke but did not see any; that he could not recall whether the door to the Armstrong space was open or closed; that he was satisfied that the smoke was coming from Armstrong but could not determine from where he stood in the corridor from what part of its space it was coming; that he made no effort to determine this.\n Little was alerted by Janitress Boutte about 11:15 p.m. She came down the stairway from the second floor to the first floor, yelling \"fire\" repeatedly. Little attempted to go up the stairway to check but was driven back by the smoke. He *114 then telephoned the fire department at 11:19 p.m. and they again arrived within six minutes.\n However, by that time flames were coming out of the windows and the fire had increased to such proportions that it was not extinguished until 5:30 a.m.\n Mart's general manager testified that it was one of the duties of the night watchman to watch out for the presence of fire and to call the fire department immediately \"unless it [the fire] was confined to a wastebasket.\" All of the leases expressly provided that Mart's employees could enter and inspect any of the leased premises.\n At the time of the first fire, Janitress de la Fuente had shown Little where the light switches inside the Armstrong premises were located. By going in and turning on the light, the first fire was easily located. It is reasonable to conclude that a similar inspection would have disclosed the second fire. The effectiveness of such action was demonstrated by the promptness with which the first fire was extinguished. Yet Little chose to stay out in the corridor and simply peer into the darkened interior.\n In our opinion, there is substantial evidence to support the jury's finding that the spread of the fire was caused by Little's failure to enter and inspect the interior of the Armstrong premises.\n Appellant argues that Little was excused from making any more of an inspection than he did because he believed that the smoke which he smelled came from the first fire. However, this merely presents an issue of fact which the jury determined adversely to appellant.\n [3a] Waiver. Paragraph 16 of the uniform lease prepared by appellant provides as follows: \"Lessee, as a material part of the consideration for this lease, hereby waives all claims for loss of property, by fire or water or theft or otherwise, occurring in the demised premises or in said building.\"\n Paragraph 17 provides as follows: \"This lease is made upon the express condition that Lessor is to be free from all liability and claim for damages by reason of any injury to any person or persons, including Lessee, or property of any kind whatsoever and to whomsoever belonging, including Lessee's, from any cause or causes whatsoever while in, upon, or in any way connected with the said demised premises during the term of this lease or any extension hereof or any occupancy hereunder, Lessee hereby covenanting and agreeing to indemnify and save harmless Lessor from all liability, *115 loss, cost and obligations on account or arising out of any such injuries or losses however occurring, provided, however, that nothing herein shall be construed as relieving Lessor of liability for its own or its employee's negligence.\" (Italics ours.)\n Appellant contends that the concluding provision italicized above is limited in its application to paragraph 17 and does not affect paragraph 16. We do not agree.\n Under paragraph 17, as to lessee's property upon the demised premises, it is provided that lessor is relieved of liability for any kind of damage thereto. As to the property of others upon the demised premises it is provided that lessee indemnifies lessor against liability for any kind of damage thereto.\n Neither of these two results obtains, however, when the liability of the lessor is based upon \"its own or its employee's negligence.\" In that event, appellant-lessor has agreed that it shall not be relieved of liability.\n Appellant argues, however, that the damage herein was caused by fire and that the particular provisions of paragraph 16 control the general provisions of paragraph 17. Appellant says that paragraph 16 refers to \"all claims for loss of property by fire or water or theft.\" However, the provision goes further than that. It covers \"loss of property, by fire or water or theft or otherwise.\" The effect of these last two words is that it makes the provision applicable to \"loss of property\" resulting from any cause whatsoever. Thus, paragraph 16 is as general and broad as paragraph 17. This being so, the rule that when a particular provision is inconsistent with a general provision the particular provision controls is not applicable herein.\n [4] A lease, like any other contract, should be given a reasonable interpretation (Civ. Code, 1643). [3b] Paragraphs 16 and 17 should be read together. It is not reasonable to say that, although a lessor agrees that it shall not be released form liability for its negligent destruction of a lessee's property, as provided in paragraph 17, it shall be released under paragraph 16 for the very same negligent destruction. In other words, it is not reasonable to permit the lessor to say, \"I am not relieved of liability to the lessee under paragraph 17 because the damage was caused by my own negligence but I am relieved of such liability by paragraph 16 because the lessee has waived any claim for such damage.\" *116\n [5] It is a cardinal rule of construction that a contract is to be construed as a whole, \"so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.\" (Civ. Code, 1641; Kerr v. Brede, 180 Cal. App. 2d 149, 151 [4 Cal. Rptr. 443]; Sunset Securities Co. v. Coward McCann, Inc., 47 Cal. 2d 907, 911 [306 P.2d 777].)\n [6] A fair and reasonable interpretation of a contract is to be preferred to one leading to a harsh and unreasonable result. Where one construction would make a contract unreasonable or unfair, and another construction, equally consistent with the language, would make it reasonable, fair and just, the latter construction is the one which must be adopted. (Farmers Mut. Tel. Assn. v. Pacific Gas etc. Co., 173 Cal. App. 2d 102, 105 [343 P.2d 111]; Cohn v. Cohn, 20 Cal. 2d 65, 70 [123 P.2d 833].)\n [7] Any ambiguity or uncertainty in a lease must be interpreted most strongly against the party who caused it. As stated in Knox v. Wolfe, 73 Cal. App. 2d 494, 500 [167 P.2d 3]: \"Since the lease was prepared by and under the direction of the lessor, its language must be interpreted most strongly against the lessor ( 1654), and any doubt or ambiguity, if such there be in the lease, must be resolved against the lessor. [Citations.]\"\n Also pertinent herein is the following language in City of Oakland v. Oakland etc. School Dist., 141 Cal. App. 2d 733, 735-736 [297 P.2d 752]: \"[I]n interpreting the lease, it must be borne in mind that the terms of the lease must be construed strictly against plaintiff, first because the lease was prepared by plaintiff [citations]; and secondly, because the indemnity provision purports to indemnify plaintiff against the results of its own negligence.\" This opinion quotes with approval from Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal. App. 2d 578, 595 [271 P.2d 122], as follows: \" '[W]here the language of an instrument purporting to exculpate one of the parties for its future negligence was prepared entirely by the party relying on its terms, words clearly and explicitly expressing that this was the intent of the parties are required [citations].' \"\n [3c] We hold that the trial court was correct in its ruling that plaintiffs' claims were not barred by the provisions of paragraph 16.\n [8] Testimony of Janitor Anderson. He testified that he only knew about one fire (the second) on the night in question. Plaintiffs' attorney stated his intention to impeach *117 Anderson with statements made prior to the trial, in which he admitted knowing about the first fire. There was no disagreement between counsel as to the propriety of the use of such statements for that purpose.\n However, in a colloquy between court and counsel, the court made the following remark: \"Well, the trier of fact then has a problem as to which statement to accept as being true, the way I understand it.\" This could be construed as indicating an erroneous concept by the court that the written statements were admissible, not only for the limited purpose of attacking Anderson's credibility, but also as evidence of the fact that he knew about the first fire. (See Kroplin v. Huston, 79 Cal. App. 2d 332, 343 [179 P.2d 575]; Hazel v. McGrath, 212 Cal. App. 2d 18, 21 [27 Cal. Rptr. 713].)\n We think it unlikely that, considering the entire colloquy between court and counsel, the jury got such an erroneous impression. Moreover, at appellant's request, the jury was given the following instruction: \"Now, evidence that on some former occasion a witness, not a party to this action, made a statement or statements, that were contradictory of his testimony here, may be considered by you only for the purpose of testing the credibility of the witness, not for the purpose of proving the truth of the statement.\" (The court had previously told the jury that Anderson was not a party to the action.)\n Another instruction to the same effect, but expressly referring to Anderson by name, was also requested by appellant. It was not given, the trial court endorsing thereon \"Covered Elsewhere.\"\n Appellant says that the foregoing proceedings caused the jury to be confused in judging Anderson's conduct. However, the only prejudice which appellant claims as the result of such alleged confusion is that it affected the jury's answer to the interrogatory, \"Was the spread of the fire caused by a delay of John Anderson in reporting the fire to Walter Little?\" The jury's answer is as follows: \"Undecided because of contradictory testimony.\" As we pointed out earlier in this opinion, this means that respondents failed to sustain the burden of proof as to Anderson's negligence in this respect and the answer in legal effect was therefore in the negative\n In our opinion, appellant suffered no prejudice from the claimed error.\n [9a] Testimony as to lack of sprinkler system. Chief *118 Hayes of the Fire Prevention Bureau testified that he inspected the premises after the fire and that the building did not have a sprinkler system. There was no objection to this testimony and it seems to be conceded that it was relevant to the issue as to whether Little was required to exercise a greater amount of care because of the lack of such a system.\n The witness was then asked \"whether or not a sprinkler system would have in any way prevented the spread of this fire?\"\n Appellant's attorney made the following objection to this question: \"I don't think that is one of the issues of the case at this time. Whether or not we required a sprinkler system I think will be something maybe your Honor will have to rule on later on. But I--I think it's immaterial at this time to ask this witness what the effect of a sprinkler system would be. It's irrelevant, immaterial. ... It's incompetent at this time, at the present state of the evidence. ... I don't think it's pertinent, your Honor, at this time in this case. That is the basis of my objection. It's incompetent, irrelevant and immaterial.\" (Italics ours.)\n The objection was overruled, the question was rephrased at the request of the witness, and he answered that sprinklers would have contained the fire and put it out.\n Appellant now argues on this appeal that the testimony was objectionable because a landlord is not liable as a general rule for a dangerous or defective condition of leased premises unless he is guilty of fraud or concealment or has covenanted to be so liable. In other words, that the tenant takes the premises as he finds them.\n But the objection as made did not inform the trial court of such contention. The specific ground of the objection was the timeliness of the testimony. Appellant does not even argue such an objection now.\n [10] We think that the following rule is applicable to the instant situation: \"When inadmissible evidence is offered, the opposing party must object and specifically state the grounds of his objection in such a manner that it clearly informs the court of the point ... [11] An objection specifying the wrong grounds, or a general objection, amounts to a waiver of all grounds not urged.\" (Rupp v. Summerfield, 161 Cal. App. 2d 657, 662 [326 P.2d 912].)\n [9b] Even assuming that it was error to overrule the objection, appellant has shown no prejudice. Testimony as to the effect of a sprinkler system upon the fire would in no way *119 affect or change the jury's specific finding that the spread of the fire was caused by Little's failure to enter and inspect the interior of the Armstrong premises. Thus, the verdict against appellant would still be supported by such finding.\n [12a] Instructions on negligence. Appellant complains of but one. It told the jury that, \"if the owner [Mart] or occupier [Armstrong] of premises allows them to remain in such a condition as to constitute a danger to other property in case of fire, his negligence in that respect will make him liable for damage done to such property by a fire which started on his premises although he was not responsible for and in fact had no connection with the start of the fire.\" (Italics ours.)\n Defendant Penn Mutual, the owner, had been dismissed from the action, leaving Mart as the sole defendant. The latter was treated as the \"owner\" in the instruction. The word \"premises\" was used to designate the space occupied by Armstrong. The phrases \"other property\" and \"such property\" were used to designate property in spaces other than the \"premises\" where the fire started. Thus, the instruction is directed to the liability of Mart and Armstrong to the tenants other than Armstrong. It has no application to the liability of Mart to Armstrong. The reference to \"or occupier\" might better have been deleted from the instruction, which was drafted by plaintiffs, because Armstrong had been eliminated from plaintiffs' case by way of nonsuit. However, Mart was not prejudiced by the inclusion of Armstrong in the instruction as the \"occupier.\"\n As to the plaintiffs, Mart contends that \"the verdict may have been based on its [the jury's] conclusion that either the absence of a sprinkler system or the presence of curtained partitions, or both, constituted a dangerous condition of the Armstrong premises within the meaning of the instruction under challenge.\"\n The reference to partitions is not pertinent to this discussion, inasmuch as the jury answered \"No\" to the special interrogatory as to whether \"the spread of the fire from the Armstrong Cork premises [was] caused by a failure of Mart Associates to construct the glass partitions all the way to the ceiling.\"\n As to the absence of a sprinkler system on the second floor, Mart contends that this condition was \"open and obvious to anyone who became a tenant of premises on the second floor of the building.\" *120\n However, the jury was instructed at Mart's request as follows: \"It is a prospective tenant's duty to make reasonable inspection of premises before taking possession; and the law holds that such tenant assumes the risk of any unsafe condition that comes to such tenant's attention or that would come to the tenant's attention if the tenant had made such an inspection and exercised ordinary care in doing so. Having thus assumed the risk of such condition the tenant or his assignee may not hold the landlord liable for injury resulting from it. Even if may be said that the landlord was negligent in permitting or creating that condition, such negligence is not actionable.\"\n [13] It is fundamental that instructions must be considered as a whole and with relation to the particular factual situation in question. (48 Cal.Jur.2d 196, Trial, 164.) [12b] We do not agree that the challenged instruction caused the jury to impose liability upon appellant only because it allowed the Armstrong premises to \"remain in such a condition as to constitute a danger to other property.\" This jury specifically and expressly found that \"the spread of the fire [was] caused by a failure of Walter Little to enter and inspect the interior of the Armstrong Cork premises.\"\n The general verdict is supported by this special finding and may properly be sustained upon this basis alone. In our opinion, appellant suffered no prejudice from the giving of the challenged instruction.\n [14] Armstrong's contributory negligence. The trial court refused to instruct on this issue on the ground that there was no evidence to support it. No one connected with Armstrong was at or near the premises on the evening in question, nor did any person connected with Armstrong even know about either of the two fires until Spingola (Mart's head janitor) telephoned Armstrong's manager shortly before midnight.\n After various proceedings had outside of the presence of the jury at the conclusion of plaintiffs' case on the issue of liability, the court made the following statement in the presence of the jury: \"The question of origin of the fire is no longer before us. We have agreed that no one knows what caused this fire, so you don't have to worry about that. The only question and issue now is: Did the Mart Associates, who were the lessees of the building, negligently permit this fire to spread; and if so, the amount of damage sustained by the tenants? And one of the tenants now will be Armstrong Cork *121 Company, who had a cross-complaint against the Mart Associates for the damage caused to their property. Now, do you understand all that? Does that about sum it up, counsel?\" (Italics added.) To which Mart's counsel replied: \"I believe so, Your Honor.\"\n Just prior to this, outside of the presence of the jury, Armstrong's motion for a nonsuit as to Mart's cross-complaint against it had been granted. Mart did not even resist the motion.\n Mart now raises the point that Armstrong \"stocked and displayed highly flammable or explosive products on the premises.\" There is no evidence that Armstrong used the premises for any purpose other than to \"display or sell ... furniture, home equipment, or related goods,\" as permitted by its lease.\n In our opinion, there is no evidence that Armstrong either did or failed to do anything which proximately caused the spread of the fire and the trial court was correct in not instructing on the doctrine of contributory negligence.\n The judgment entered upon the verdict in favor of plaintiffs and cross- complainant Armstrong and against defendant and cross-defendant Mart is affirmed; the order denying Mart's motion for judgment notwithstanding said verdict is affirmed; the judgment of nonsuit entered in favor of Armstrong on the cross-complaint of Mart and Penn Mutual is affirmed.\n Shoemaker, P. J., and Taylor, J., concurred.\n", "ocr": false, "opinion_id": 2207968 } ]

[ "243 F.3d 157" ]

[ { "author_str": "Niemeyer", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/243/243.F3d.157.00-1539.html", "author_id": null, "opinion_text": "243 F.3d 157 (4th Cir. 2001)\n MATTHEW MILSTEAD, ADMINISTRATOR OF THE ESTATE OF MARK MILSTEAD, PLAINTIFF-APPELLANT,v.CHAD KIBLER; SCOTT PROCTOR; LESTER WHETZEL, DEFENDANTS-APPELLEES.\n No. 00-1539.\n UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.\n Argued: January 22, 2001.Decided: March 15, 2001.As Amended: April 5, 2001.\n \n 1\n Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg.\n \n \n 2\n James H. Michael, Jr., Senior District Judge. (CA-98-75-5)[Copyrighted Material Omitted]\n \n \n 3\n Argued: Jeffrey S. Parker, Great Falls, Virginia, for Appellant. Mark Dudley Obenshain, Wharton, Aldhizer & Weaver, P.L.C., Harrisonburg, Virginia, for Appellees. On Brief: James R. Tate, Tate & Bywater, Ltd., Vienna, Virginia, for Appellant.\n \n \n 4\n Before Wilkinson, Chief Judge, Niemeyer, Circuit Judge, and Malcolm J. Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.\n \n \n 5\n Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Wilkinson and Judge Howard joined.\n \n OPINION\n Niemeyer, Circuit Judge\n \n 6\n The Administrator of the Estate of Mark Milstead brought this action under 42 U.S.C. § 1983, alleging that three police officers used excessive force in violation of the Fourth and Fourteenth Amendments when one of the officers accidentally shot Milstead, mistaking him for an assailant who had just shot Milstead and his fiancee. The district court granted the officers' motion for summary judgment, relying on qualified immunity. Finding no constitutional violation, we affirm.\n \n I.\n \n 7\n Following an emergency call on October 26, 1996, from Mark Milstead to the 911 operator in Shenandoah County, Virginia, Officers Chad Kibler and Scott Proctor, deputy sheriffs in Shenandoah County, and Lester Whetzel, a Woodstock, Virginia town police officer, were dispatched to 59 Indian Camp Trail at Bear Paw Road, in a secluded area in Shenandoah County in response to Milstead's call for help. Milstead reported that he and his fiancee were being attacked by an intruder, Steven Ramey, his fiancee's former boyfriend. The 911 operator reported Milstead's call to the officers, telling them that a man had been shot in the neck and a woman stabbed.1 The officers received the call shortly after midnight and responded immediately. Upon their arrival at the house, they saw a van parked in front of the house, with the door open, and fresh blood on the van and on the steps leading to the house. They also heard calls for help from inside the house. As Officer Whetzel walked around the house, Officer Proctor, followed by Officer Kibler, proceeded to the front door. Proctor kicked open the door, yelled \"police,\" and took a couple of steps into the house. It is unclear whether Kibler, who was following closely behind, actually made it inside. Both officers saw two figures wrestling on the floor, one of whom withdrew from the altercation and warned them that the other had a gun. The person with the gun pointed it at Officer Proctor, whereupon Proctor stopped, began to back up, and fired four shots from his pistol. While backing up, Proctor fell backwards onto the deck outside the door. Kibler, believing that Proctor had been shot, retreated to the outside corner of the house where the steps from the front desk exited, and took a defensive position. Kibler then heard one of the people -- presumably Ramey -say that he was going to \"kill all of you.\" About 15 seconds after Officer Kibler's initial retreat from the front door, someone came crashing through the door \"in a run\" and turned toward where Officer Kibler was positioned. Kibler fired two shots, bringing the person down. While the person's hands were about chin level, Kibler did not see anything in them; the only light in the area was an outside wall light behind the person whom Kibler shot.\n \n \n 8\n Officer Kibler explained later that when he fired his gun he believed that the target had to be the assailant Ramey because Milstead had been shot in the neck and could not therefore have been running. He also explained that Ramey had a gun, and that, shortly before the person believed to be Ramey came out of the house, someone said he was going to \"kill you all.\" Kibler concluded that Ramey was making good on this threat.\n \n \n 9\n Still alive, the person Officer Kibler shot told him, \"He is still inside.\" Kibler then realized that he had shot Milstead and not Ramey. After talking with Milstead, Kibler went to the other side of the house and told Officer Proctor that he had shot \"the good guy.\" Proctor told Kibler to return to cover and be watchful for Ramey. After backup arrived several minutes later, the officers removed Milstead and transported him to the hospital, where he died shortly thereafter from the shots fired by Officer Kibler. The officers determined later that Ramey had killed himself with a shot to his head and that Milstead's fiancee had also died.\n \n \n 10\n Milstead's estate commenced this action under 42 U.S.C. § 1983, alleging that Officer Kibler had used excessive force in violation of the Fourth and Fourteenth Amendments and alleging state claims based on the fact that the officers failed to seek medical care in time to save Milstead's life. The district court granted the officers' motion for summary judgment, dismissing the federal claims on qualified immunity and dismissing the state claims because the plaintiff failed to advance sufficient proof in support of them. This appeal followed, challenging only the qualified immunity ruling.\n \n II.\n \n 11\n The Administrator of the Estate contends that the\"unjustified killing of an innocent person by the police... who had been summoned... to protect and assist\" Milstead constituted excessive force, in violation of the Fourth and Fourteenth Amendments, and that, in finding the officers in this case immune from liability, the district court \"fail[ed] to consider the full evidentiary record, it improperly weigh[ed] evidence, it fail[ed] to consider the totality of the circumstances, it fail[ed] consistently to apply the correct objective standard of conduct, it fail[ed] to draw all permissible inferences in favor of the nonmoving party, and ultimately degenerate[d] into fact-finding by the trial judge.\" The Administrator argues that if the record is taken as a whole and in a light most favorable to Milstead and if the correct legal standard is applied, \"the killing of Mark Milstead was unreasonable as a matter of law.\"\n \n \n 12\n The legal principles governing qualified immunity analysis are well established. \"Police officers are protected by qualified immunity when performing their duties within the scope of their employment insofar as their conduct does not breach `clearly established statutory or constitutional rights of which a reasonable person would have known.'\" Sigman v. Town of Chapel Hill, 161 F.3d 782, 786 (4th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The reasonableness inquiry is an objective one, \"measured by reference to clearly established law.\" Harlow, 457 U.S. at 818. At bottom, police officers performing a discretionary function enjoy an immunity that shields them from liability for civil damages unless (1) the officers' conduct violates a federal statutory or constitutional right, and (2) the right was clearly established at the time of the conduct, such that (3) an objectively reasonable officer would have understood that the conduct violated that right. See Wilson v. Layne, 526 U.S. 603, 614-15 (1999); Anderson v. Creighton, 483 U.S. 635, 638-40 (1987); Harlow, 457 U.S. at 818-19.\n \n \n 13\n The \"first inquiry\" in the analytical structure by which the qualified immunity defense is addressed is whether a violation of a constitutional right has been alleged. Siegert v. Gilley, 500 U.S. 226, 231 (1991). Thus, when the qualified immunity defense is asserted, \"on summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.\" Id. (quoting Harlow, 457 U.S. at 818) (internal quotation marks omitted (alteration removed)). And \"concomitant\" to these determinations is the determination \"of whether the plaintiff has asserted a violation of a constitutional right at all.\" Id. at 232. In Siegert, after establishing this framework, the Court then proceeded to determine first whether the plaintiff alleged a violation of the Constitution.\n \n \n 14\n This analytical sequence was confirmed in Wilson v. Layne, 526 U.S. 603 (1999), in which the Court reiterated that\"[a] court evaluating a claim of qualified immunity `must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation'\" Id. at 609 (emphasis added) (quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999)). This procedure applies even when the non-constitutional issues in the analysis may resolve the immunity issue more easily than the underlying question of constitutional law. See County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998). Were courts to rule on qualified immunity without determining the constitutionality of the challenged conduct, \"standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non-constitutional.\" Id.\n \n \n 15\n Accordingly, in this case we turn first to the question of whether the Administrator has alleged or demonstrated that the conduct of any of the three officers violated Milstead's constitutional rights. Only if we find a constitutional violation may we proceed further in the analysis.2 See Wilson, 526 U.S. at 609.\n \n \n 16\n \"[A]ll claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard.\" Vathekan v. Prince George's County, Md., 154 F.3d 173, 178 (4th Cir. 1998) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)) (emphasis in Graham, alteration in Vathekan, internal quotation marks omitted). \"The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,\" Bell v. Wolfish, 441 U.S. 520, 559 (1979), but \"requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,\" Graham, 490 U.S. at 396. Thus, in determining the constitutionality of the use of deadly force, a court must decide \"whether the totality of the circumstances justified\" the use of deadly force in the particular circumstances of the case before it. Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). But the use of deadly force is justified only in circumstances where \"it is necessary to prevent the escape [of the suspect] and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.\" Id. at 3. An officer's use of force is \"judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,\" allowing for the fact that \"police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.\" Graham, 490 U.S. at 396, 397. Thus, the objective facts \"must be filtered through the lens of the officer's perceptions at the time of the incident in question.\" Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). This \"limits second-guessing the reasonableness of actions with the benefit of 20/20 hindsight\" and \"limits the need for decision-makers to sort through conflicting versions of the `actual' facts, and allows them to focus instead on what the police officer reasonably perceived.\" Id.; see also Gooden v. Howard County, Md., 954 F.2d 960, 965 (4th Cir. 1992) (en banc).\n \n \n 17\n In this case, we determine first whether the totality of the circumstances known to Officer Kibler would give a reasonable officer probable cause to believe that the person who crashed through the door in a run and turned toward him \"posed a threat of serious physical harm, either to [Officer Kibler] or to others.\" Garner, 471 U.S. at 11. If we assume for the moment that this person had been Ramey, we believe that the use of deadly force in the circumstances would clearly have been justified. Kibler knew that Ramey had shot Milstead in the neck and stabbed his former girlfriend. He also believed that Ramey had shot Officer Proctor. He knew that Ramey had a gun, and he had heard Ramey shout from within the house that he was going to \"kill you all.\" While Kibler waited the seconds before the believed-to-be assailant came crashing out, he recognized that the only door to the house exited to the deck and down the steps to where he had taken his position. And when the believed-to-be assailant actually came crashing through the door \"in a run\" and turned toward his position, presumably with a gun, Officer Kibler had no more than a second or two to react. From the perspective of a reasonable officer, Ramey obviously would have posed a deadly threat to both Kibler and the other officers at this dark, remote location, and therefore the use of deadly force against Ramey would have been justified.\n \n \n 18\n But, as it turned out, the person who came crashing through the door was not Ramey, but rather Milstead. There is no dispute that at the time Officer Kibler fired his two shots, he did not know this. Only after he shot Milstead, when Milstead revealed the reality of the situation by his statement, \"He is still inside,\" did Officer Kibler first recognize his mistake. He promptly went to Officer Proctor and told him that he had just shot \"the good guy.\" Thus, just as clearly as Officer Kibler intended to shoot Ramey when he came out the door, he clearly did not intend to shoot Milstead. This leaves us with the question of whether, in making this mistake, Officer Kibler violated Milstead's Fourth Amendment rights.\n \n \n 19\n A mistake of this type generally takes on one of two forms. One is typified by the officer who shoots (with justification) at a suspect but misses, accidently hitting a bystander. The officer intended to direct deadly force against the suspect but not against the innocent victim. The second form is typified by the officer who shoots (with justification) at a person he believes to be the suspect and hits the intended target, but in fact, the target was misidentified and turns out to be an innocent victim. In that situation, the officer intended to direct deadly force against an innocent victim, but did so under a mistaken belief that he was the suspect.\n \n \n 20\n Under the first form of mistake, where the seizure is directed appropriately at the suspect but inadvertently injures an innocent person, the innocent victim's injury or death is not a seizure that implicates the Fourth Amendment because the means of the seizure were not deliberately applied to the victim. See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-95 (1st Cir. 1990). In this vein, we have held that when officers shoot at a suspect, but hit a bystander instead, no Fourth Amendment seizure occurs. Rucker v. Harford County, Md., 946 F.2d 278, 281 (4th Cir. 1991) (\"[O]ne is `seized' within the fourth amendment's meaning only when one is the intended object of a physical restraint by an agent of the state\" (emphasis in original)).\n \n \n 21\n But the circumstances in this case fall under the second form of mistake where the officer deliberately directs his force against an innocent victim, believing him, although mistakenly, to be the suspect. This seizure of the innocent victim implicates the Fourth Amendment, but it is not necessarily unreasonable and therefore in violation of the Fourth Amendment. See Hill v. California, 401 U.S. 797, 803-04 (1971) (holding that when police have probable cause to arrest one party and they reasonably mistake a second party for the first, then the arrest of the second party is valid); cf. Vathekan, 154 F.3d at 178 (noting that officer's release of attack dog that \"cannot discriminate between a criminal and an innocent person\" and that attacks an innocent victim is a seizure implicating the Fourth Amendment).\n \n \n 22\n In Hill, the police officers had probable cause to arrest Hill for burglary, and when they went to Hill's apartment to effect his arrest, Miller, who fit the description of Hill, answered the door. Miller said that he was not Hill but was waiting for him, and produced evidence to prove his identity. But the police, disbelieving Miller, proceeded to arrest him and search the apartment, discovering evidence that ultimately convicted Hill. In upholding the arrest of Miller, the Supreme Court noted that fake identifications were not an uncommon method employed to evade arrest, that Miller resembled Hill, and that Miller's lack of explanation for his mode of entry into the apartment, which had a lock on the door, was not convincing to the officers. In finding both the arrest and the search reasonable and valid under the Fourth Amendment, the Court stated that even though the officers turned out to be \"quite wrong,\" \"sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time.\" Id. at 804.\n \n \n 23\n The principle that the Supreme Court applied in Hill -- that no Fourth Amendment violation occurs when the \"officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time\" -- is at the root of several of our holdings concluding that officers' use of force was reasonable in situations where they had probable cause to believe that the suspect had a weapon, but their belief turned out to be mistaken. See, e.g., McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994) (noting the reasonableness of an officer's conduct where the officer shot a suspect upon receiving a warning from a third person that the suspect had a gun, even though the suspect actually had no weapon); Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991) (holding force reasonable where an officer could have had probable cause to believe that a suspect posed a deadly threat even though the suspect turned out to be unarmed); cf. Sigman, 161 F.3d at 788 (concluding that an officer's conduct was reasonable when he shot a suspect, believing that the suspect had a knife, even though onlookers said that they saw no knife). In all of these cases, the objective facts, filtered through the lens of the officer's perception, gave the officer probable cause to believe that his use of force was justified. And when the force would have been justified if the belief had been correct, we have found no Fourth Amendment violation. In short, a mistaken understanding of the facts that is reasonable in the circumstances can render a seizure based on that understanding reasonable under the Fourth Amendment.\n \n \n 24\n In this case, we believe that Officer Kibler's mistaken understanding did not make his use of force unreasonable. The information that Kibler had at the time he shot Milstead was that (1) a female had been stabbed, (2) Milstead had been shot in the neck, (3) the intruder, Ramey, was armed with a gun, (4) Ramey had apparently shot at Officer Proctor, and (5) Ramey had threatened to kill all of the officers.\n \n \n 25\n Blood had already been shed, as Officer Kibler witnessed upon his arrival at the scene. As Kibler waited the few seconds in the dark after Officer Proctor and Ramey apparently exchanged gunfire, he did not know where Milstead or Ramey was. He did know, however, that Milstead had been shot in the neck, and therefore he believed that, when someone crashed through the front door in a run, it had to be Ramey. Although he did not see a gun, he knew that Ramey had a gun only seconds earlier. Moreover, because of the poor lighting, he could not be sure that he was not holding a gun. In the second or two after the person's crashing exit through the door, Kibler had to decide whether to fire. In this instant of mortal danger, he fired, intending to end the threat posed by Ramey. His mistake was tragic.\n \n \n 26\n But courts cannot second guess the split-second judgments of a police officer to use deadly force in a context of rapidly evolving circumstances, when inaction could threaten the safety of the officers or others. See Graham, 490 U.S. at 396-97; McLenagan, 27 F.3d at 1007-08. While we know in hindsight that Officer Kibler mistakenly shot Milstead, instead of Ramey, this mistake does not negate the justification for the use of deadly force where Officer Kibler had an objectively reasonable belief that Milstead was Ramey. \"[T]he Fourth Amendment addresses `misuse of power,' not the accidental effects of otherwise lawful conduct.\" Brower, 489 U.S. at 596 (internal citation omitted).\n \n \n 27\n Because no Fourth Amendment violation was shown, we need not proceed with the remainder of the qualified immunity analysis, i.e., to determine whether the right was clearly established at the time of the conduct or to resolve whether the contours of such a clearly established right were sufficiently clear that a reasonable officer would understand that he was violating the right. See Wilson, 526 U.S. at 614-15.\n \n \n 28\n We acknowledge that the facts of this case -- triggered by the criminal conduct of Ramey -- sound a tragic knell of classical proportions. Ramey murdered Milstead's fiancee, who was pregnant. Officer Kibler attempted to perform his duty to assist Milstead, but instead killed him by mistake. And Ramey in the end committed suicide. Officer Kibler and the families of the innocent, as well as the family of the suspect, must live with these painful memories. Presented with this lawsuit by Milstead's family against Officer Kibler, we can only decide the limited legal question of whether a constitutional lawsuit lies against Officer Kibler. We conclude that it does not.\n \n AFFIRMED\n \n \n NOTES:\n \n \n 1\n In fact, the 911 operator misreported somewhat the substance of Milstead's call. Milstead had actually reported that his fiancee had been shot and might be dead and that he had been shot in the throat.\n \n \n 2\n Because it was Officer Kibler who fired the two shots that ultimately killed Mark Milstead, the analysis focuses through the lens of his perspective. While Officers Proctor and Whetzel are also named defendants, the complaint fails to allege that either violated any of Mark Milstead's constitutional rights. Accordingly, we direct our analysis to whether Officer Kibler deprived Mark Milstead of a constitutional right in shooting him on October 26, 1996.\n \n \n ", "ocr": false, "opinion_id": 772438 } ]

[ "321 P.2d 252", "74 Nev. 32" ]

[ { "author_str": "Eather", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5044, "opinion_text": "\n321 P.2d 252 (1958)\nCarlo PAPAGNI and Anna Papagni, husband and wife, Appellants,\nv.\nAlbert H. PURDUE, Respondent.\nNo. 4014\nSupreme Court of Nevada\nFebruary 11, 1958.\nWanderer and Perry, of Las Vegas, for appellants.\nMcNamee & McNamee, Las Vegas, for respondent.\nEATHER, Justice.\nThis is an appeal taken by the plaintiff below from summary judgment in favor of the defendant in an action for injuries resulting from negligence. The injuries resulted from a fall upon a stairway which, it was alleged, defendant had negligently failed to repair.\nIn support of the judgment defendant contends that the complaint of the plaintiff shows upon its face that plaintiff had either assumed the risk which the defective stairway created or had been guilty of contributory negligence. Defendant concedes that if such is not the case summary judgment was not proper. The sole question upon this appeal, then, is whether it may be said that assumption of risk or contributory negligence conclusively appears as a matter of law from the allegations of the complaint; or whether it may be said that questions concerning such defenses remain for the court or jury.\nThe complaint alleges that plaintiff leased a dwelling house from defendant for one month. It then proceeds: \"That the usual place of egress from said house to the yard thereof was down certain steps on the side of the house leading to the ground. That at the time of said hiring and leasing from defendant, defendant agreed to repair said steps on the side of the house, which steps were then broken and uneven *253 and which were dangerous to plaintiff's use. That defendant, although often requested to repair the same and agreeing so to do, failed and neglected to make the necessary repairs and carelessly and negligently allowed the said stairs to remain in a dangerous condition.\" It is then alleged that plaintiff, after the lapse of three months, \"while using said stairs, tripped and fell as a result of defendant carelessly and negligently allowing the said stairs to remain in said dangerous condition.\"\nIt is clear that plaintiff was aware of the defect which defendant had agreed to repair and of the fact that danger (in some degree) resulted from failure to repair and that she had used the stairs with such knowledge. More is necessary, however, if contributory negligence or assumption of risk is to follow.\nIf reliance is upon contributory negligence it must appear that the risk which plaintiff knowingly took was not, under the circumstances, a reasonable one to take; that the apparent danger was such that a reasonably prudent person would not have undertaken the risk of using the stairs. Am. Jur. V. 38, Negligence, secs. 182, 184, pp. 859-862.\nIf reliance is upon assumption of risk, it must appear not only that the condition was recognized as dangerous, but also that plaintiff appreciated the nature of the risk involved. The California Supreme Court considered this problem in the case of Hawk v. City of Newport Beach, 46 Cal. 2d 213, 293 P.2d 48, 51. The court there said that the plaintiff did not assume the risk of injury when he dived from a rock into water which he knew was shallow, because although he knew that such an act was dangerous, \"it cannot be said as a matter of law that he appreciated the magnitude of that danger. * * * The elements of [assumption of risk] are a person's voluntary acceptance of a risk and an appreciation of the magnitude of that risk.\" Other courts have expressed the same proposition couched in slightly different terms. \"There is involved in the question of assumption of risk not only the question of knowledge, but a reasonable opportunity to ascertain the nature of the risk, and also an appreciation of the risk.\" York v. Chicago M. & St. P. Ry. Co., 184 Wis. 110, 198 N.W. 377, 381. Similarly, \"The plaintiff is not required to look for danger, but is held to assume the risks only when the danger is so apparent that one who owes no duty to inspect was bound to discover it; but that is ordinarily a question of fact for the jury. As to appreciation of risk, as distinguished from knowledge of danger, the question is: Did the servant understand the risk, or, by the exercise of ordinary observation, ought he to have understood the risk, to which he was exposed by the dangerous situation?\" Rase v. Minneapolis St. P. & S. Ste. M.R. Co., 107 Minn. 260, 120 N.W. 360, 367, 21 L.R.A. (N.S.) 138, 149. Further, \"Assumption of risk is a defense, but it rests upon the intelligent acquiescence and knowledge of the danger and appreciation of the risk naturally and ordinarily incident to the employment, or arising from a particular situation in which the work is done. McClain v. Charleston & W.C. Ry. Co., 191 S.C. 332, 4 S.E.2d 280. In 35 Cal.Jur. 814, Negligence, sec. 267, the distinction is made between assumption of risk and contributory negligence. It is stated there that assumption of risk is founded on the theory of consent, with two main requirements: (1) Voluntary exposure to danger, and (2) Actual knowledge of the risk assumed. \"A risk can be said to have been voluntarily assumed by a person only if it was known to him and he fully appreciated the danger.\" Ibid. at 822.\nThese necessary factual elements of the defenses in question cannot be said to have been established by the allegations of the complaint. It cannot be said that contributory negligence or assumption of risk conclusively appear as a matter of law. Issues thus remain for the court or jury. Summary judgment, then, was not proper.\nReversed and remanded with instructions that summary judgment be set aside, and for further proceedings.\nBADT, C.J., and MERRILL, J., concur.\n", "ocr": false, "opinion_id": 2606949 } ]

[ "106 Cal. App. 3d 893", "165 Cal. Rptr. 401" ]

[ { "author_str": "Taylor", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6609, "opinion_text": "\n106 Cal.App.3d 893 (1980)\n165 Cal. Rptr. 401\nFOUNDATION FOR SAN FRANCISCO'S ARCHITECTURAL HERITAGE et al., Plaintiffs and Appellants,\nv.\nCITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; NEIMAN-MARCUS, Real Party in Interest and Respondent.\nDocket No. 48599.\nCourt of Appeals of California, First District, Division Two.\nJune 12, 1980.\n*897 COUNSEL\nAntonio Rossmann for Plaintiffs and Appellants.\nHanson, Bridgett, Marcus, Vlahos & Stromberg, Stephen L. Taber and Stephen N. Dennis as Amici Curiae on behalf of Plaintiffs and Appellants.\nGeorge Agnost, City Attorney, and Philip J. Moscone, Deputy City Attorney, for Defendants and Respondents.\n*898 Jacobs, Sills & Coblentz, William F. McCabe, Jonathan R. Bass, Pamela S. Duffy, O'Melveny & Myers, Henry C. Thumann, James W. Colbert III, Lisa Hill Fenning and Willie L. Brown for Real Party in Interest and Respondent.\nOPINION\nTAYLOR, P.J.\nFoundation for San Francisco's Architectural Heritage, et al.[1] (collectively Foundation) appeal from the denial of their petition for a writ of administrative mandamus to overturn the approval by the Board of Permit Appeals (Board) of the City and County of San Francisco (City) of permits for the demolition of the City of Paris building and the construction of a new building by the real party in interest, Neiman-Marcus, a division of Carter-Hawley-Hale Stores, Inc. The Foundation's major contentions are that: 1) the environmental impact report (EIR) did not comply with the procedural requirements of the California Environmental Quality Act (CEQA); 2) the Board's approval violated the substantive mandate of CEQA and the Board's findings did not comply with Public Resources Code section 21081; and 3) the City's master plan provided an independent basis for historic preservation. For the reasons set forth below, we have concluded that there is no merit to any of these contentions and that the judgment must be affirmed.\nA detailed chronology of the pertinent facts, as revealed by the record, is as follows: As this litigation focuses on the demolition of the City of Paris building, we begin there. The City of Paris department store, which originated aboard a ship in San Francisco Bay in 1850, by 1896 occupied the Spring Valley Water Company building. The Spring Valley building was designed by architect, Clinton Day, whose works included the Stanford Memorial Church. By 1978, the City of Paris building and the Union Trust Company, at Grant Avenue and Market Street designed in 1908, were the only Day-designed buildings in the City. After the 1906 earthquake, the Spring Valley building required complete interior structural reconstruction. John Bakewell and Arthur Brown, Jr., assisted by Louis Bourgeois, were commissioned to design the building interior. Bakewell and Brown graduated from the University of California in the 1890's and attended the School of Beaux Arts in Paris; Bakewell was a student of Bernard Maybeck. Bakewell and *899 Brown designed a number of neoclassic buildings, including the City Hall and the Veterans' War Memorial Building.\nThe interior redesign included enlarging an existing rotunda into an elliptical shape extending through four floors, and crowned with a skylight and art glass dome. The rotunda is supported on the ground floor by eight pillars ornamented with masks of women's faces wreathed with grape leaves and grape clusters. From the ground floor, giant, fluted pilasters with Corinthian capitals rise the full length of the space. The art glass dome caps the rotunda with white and amber glass, with a faint trace of light green, depicting a sailing ship, the emblem of Paris, France, against a background of fleurs-de-lys. Following the reconstruction of the City of Paris building in 1909, the store annually erected a Christmas tree which rose from the main floor into the upper reaches of the rotunda. For many Bay Area residents, no Christmas season was complete without viewing \"the tree.\"\nThe City of Paris occupied the building from 1909 until it closed in 1967. The building was temporarily occupied by Liberty House from May 1972 to October 1974, and partially by a discount outlet of Joseph Magnin. The building has been vacant ever since.\nNeiman-Marcus acquired the City of Paris building in 1970 and the adjacent premises at 133-157 Geary Street in 1971. When Neiman-Marcus in 1974 announced plans to demolish the City of Paris building to erect a branch of its specialty store, there was widespread opposition, including a petition drive which obtained thousands of signatures to preserve the building. The matter had been under discussion before the City's Landmarks Preservation Advisory Board since 1970.\nIn January 1974, one of the appellants petitioned the board of supervisors and the director of planning urging that the building be designated a City landmark. The City's Landmarks Preservation Advisory Board conducted a study and recommended landmark status for the building because of its special character, special historical architectural and aesthetic interest and value, and because the proposed designation would be in conformance with article 10 of the City Planning Code.\nA public hearing held by the City Planning Commission (Planning Commission) on July 11, 1974, attracted representatives of a number of *900 local organizations who pressed for landmark designation. Stanley Marcus, of Neiman-Marcus, stated that the building did not meet the firm's space and safety standards; he proposed to incorporate the rotunda and dome into the new structure, and to continue the Christmas tree tradition.\nAllan Jacobs, then director of planning, stated that most of the comments at the landmarks board hearing had addressed the building's interior, and pointed out that landmark designation applies to the exterior of a building and offers no protection for the interior. The City Planning Commission adopted resolution No. 7212, disapproving City landmark status for the reasons set forth below.[2] The decision was appealed to the City's board of supervisors, which after four public hearings refused to designate the City of Paris as a landmark. Subsequently, the building was designated a State Historical Landmark and also was placed on the National Register of Historical Places at the National Level of Significance.\nIn December 1977, the consultant employed by Neiman-Marcus, submitted a preliminary draft of the EIR. After almost 10 months of review and revision by the department of city planning (Department) the City released its draft EIR in October 1978. Subsequently, the Planning Commission held public hearings, and prepared 130 pages of detailed comments and revisions. The draft EIR indicates that the Foundation and other opponents had an opportunity to comment and testify. A public hearing on the final EIR was held in December 1978, *901 the EIR certified, and the Planning Commission adopted resolution No. 8134.\nThe final EIR indicated that the physical condition of the building created a number of impediments to the retail store use intended by Neiman-Marcus, including low ceiling heights, lack of escalators, and inefficient division of space. The design of the building preceded modern lighting and climate control. The building also did not have a modern fire sprinkler system and did not meet the current seismic safety requirements of the City building code. Because of the structural and seismic weaknesses, attempts to rehabilitate the building and conform it to code requirements would be expensive and time-consuming and without guarantee of success. The proposed new building will retain the rotunda and glass dome; it was designed by two of the country's most prominent architects, Phillip Johnson and John Burgee. Beneficial economic impacts include 550 new jobs and additional City revenues of about $1,052,900 and almost $2 million in tax revenues to the state.\nIn January 1979, after a public hearing, the Planning Commission drafted its resolution No. 8150; after another public hearing in March 1979, the permits were issued. The Foundation appeared at all of these proceedings and then appealed to the Board.\nOn September 12, 1979, the Board held a duly noticed public hearing to consider the Foundation's appeals Nos. 8608, 8609 and 8610, protesting the issuance of permits Nos. 451141, 451281, and 451282, which allowed the demolition of the City of Paris building and construction of a new Neiman-Marcus specialty retail store on the site commonly known as 133-181 Geary Street (the Project). The parties and other interested citizens appeared at this hearing. At the conclusion of the hearing, the Board, by a three to one vote,[3] adopted a resolution stating that: 1) the Board had reviewed and considered the final EIR certified by the Planning Commission's resolution No. 8134 as in compliance with CEQA and the applicable California guidelines; 2) the Board reviewed and considered resolution No. 8134 adopted by the Planning Commission on December 21, 1978, and resolution No. 8150 adopted by the Planning Commission on January 11, 1979, as well as the testimony presented at the public hearing and the written materials submitted.\n*902 The Board found that the considerations and findings contained in the Planning Commission's above resolutions were valid and appropriate under the circumstances, and confirmed both of these resolutions in their entirety.[4]\n*903 The Board further found that: \"2. The conditions imposed by the City Planning Commission on the permits constitute major mitigation of the significant visual and urban design impacts of the project, including the historic impacts, as follows:\n\"A. The conditions preserve the unique architectural and historic features of the City of Paris Building, the rotunda and the dome;\n\"B. The facade and fenestration requirements keep the project within the scale and architectural characteristics of the surrounding buildings and environment;\n\"C. The retention of the dome preserves the association of the site with the historic, but now defunct, City of Paris Department Store.\n*904 \"3. No feasible alternative to the project was presented before the City Planning Commission, nor does one exist, because:\n\"A. The developer cannot use the City of Paris Building in its present configuration or in any rehabilitated or renovated configuration as a retail specialty store because the interior space available does not meet the developer's marketing requirements;\n\"B. The use of the existing structure in an unrehabilitated configuration is not desirable because the structure does not presently meet the minimum building code requirements with regard to seismic safety;\n\"C. Any attempted rehabilitation of the present structure to meet minimum safety requirements would result in substantially greater construction costs than the proposed project;\n\"D. There is no guarantee that rehabilitation of the building sufficient to meet minimum seismic safety requirements would preserve the facade and other structural elements in the event of an earthquake;\n\"E. Any alternative which contemplated rehabilitation of the existing structure would entail substantial delay in construction with resultant higher construction costs, and substantial deferment and reduction of sales revenues and tax revenues to the City and County of San Francisco;\n\"F. Any alternative which contemplated use of the existing structure would result in lower annual sales revenues, lower tax revenues and a reduction in the economic multiplier effect which would result from the project;\n\"G. The use of the existing site by any other developer would present that developer with substantially the same rehabilitation costs as would be faced by Neiman-Marcus;\n\"H. Neiman-Marcus has advised the Board that it is unwilling, at present, to sell the site to any other developer and the City cannot force such a sale;\n\"I. There is no evidence that another developer exists who is willing to acquire and rehabilitate the existing structure and who has the financial and technical ability to do so;\n*905 \"J. Use of the existing building by another developer, if another developer could purchase and use the site would increase uncertainty as to a schedule of construction with possible delays in the site's contribution to San Francisco's retail trade, and potential resulting losses in City revenues, in employment and in economic multiplier effects from the new jobs and commercial activity proposed by project sponsor in downtown San Francisco.\n\"4. No alternative to the project is capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social and technological factors.\" (Italics added.)\nThe Board concluded that \"The benefits of the project, including increased tax revenues, new employment opportunities, economic multiplier effects, and the establishment of a specialty retail store in accordance with the Master Plan, override the significant environmental and urban design effects, including the historic effects (to the extent they have not been mitigated as outlined above), and any further mitigation measures which would eliminate, delay, or reduce those benefits are not feasible.\" (Italics added.)\nThe Foundation filed its petition for a writ of mandamus in February 1979. After a hearing, the court entered its judgment that the Board's decision was supported by substantial evidence and that the Board had proceeded in a manner required by law, pursuant to Public Resources Code sections 21168[5] and 21168.5,[6] and Code of Civil Procedure section 1094.5. This appeal ensued. This court acceded to the parties' joint request *906 for an expedited hearing, pursuant to Public Resources Code section 21167.1.[7]\nPreliminarily, we dispose of the Foundation's minor procedural contentions.\n(1) Foundation argues that the Board could not make and add findings by a vote of three to one. For this proposition, Foundation relies on section 3.651 of the City Charter (Charter)[8] which delineates the functions, powers and duties of the Board.\nIn the exercise of its appellate jurisdiction, the Board is invested with complete power to hear and determine the entire controversy before it, is free to draw its own conclusions from the conflicting evidence before it, and in the exercise of its independent judgment in the matter, to affirm, modify or overrule the action of the subordinate agency or official at the primary level. When exercising its review powers, the Board is bound by the relevant law as enunciated by the Charter, ordinances and controlling court decisions, and it must exercise a lawful discretion applied to the facts in evidence (City & County of S.F. v. Superior Court (1959) 53 Cal.2d 236, 250-251 [1 Cal. Rptr. 158, 347 P.2d 294]). The Board's discretion embraces broad factfinding powers in the exercise of its independent judgment (City and County of San Francisco v. Pace (1976) 60 Cal. App.3d 906, 910 [132 Cal. Rptr. 151]).\nSo far as here pertinent, Charter section 3.651 provides: \"After such hearing and such further investigation as the board may deem necessary, it may concur in the action of the department authorized to issue such license or permit, or, by the vote of four members, may overrule the action of such department and order that the permit or license be granted, restored or refused.\"\nThe Charter specifies only that the votes of four members are required to overrule the action of the agency in issue. As no specific number of votes is specified for a concurrence or affirmance, any power not expressly forbidden by the Charter may be exercised by the municipality (Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, *907 310 [144 P.2d 4]). Thus, the reasonable construction of the provision is that only a majority vote is required for a concurrence or affirmance. Here, there was such a concurrence by a vote of three, a clear majority of the four members of the Board who were qualified to act on the matter. We conclude that the Board was empowered to make additional findings by majority vote.\nThe Foundation also maintains that the trial court was required to make findings and conclusions. (2) In administrative mandamus proceedings in which the trial court is required to exercise a substantial evidence rather than an independent judgment review of the proceedings, findings of fact are not required (Sierra Club v. California Coastal Zone Conservation Com. (1976) 58 Cal. App.3d 149, 156 [129 Cal. Rptr. 743]; Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal. App.3d 497, 518 [113 Cal. Rptr. 539]).\n(3a) We turn first to the Foundation's contention that the EIR was inadequate as: 1) it was based only on data supplied by Neiman-Marcus; and 2) it did not properly discuss the alternatives.\n\"`[A] \"major purpose of an EIR is to inform other government agencies, and the public generally, of the environmental impact of a proposed project [citations]....\" (No Oil, Inc. v. City of Los Angeles [1974] 13 Cal.3d 68, 86) and to inform the decision-making agency of the full range of adverse environmental effects and alternative measures prior to its decision to approve or disapprove such project (former § 21061; Guidelines, §§ 15012, 15150), the underlying policy of the act to \"[e]nsure that the long-term protection of the environment shall be the guiding criterion in public decision\" (§ 21001, subd. (d)), dictates that the \"initial and primary responsibility for striking [the necessary] balance between competing concerns must rest with the [decision-making] agency itself, ...\" [citations] and whose consideration cannot be merely a \"post hoc rationalization\" of a decision already made. [Citations.]' (Mount Sutro Defense Committee v. Regents of University of California (1978) 77 Cal. App.3d 20, 36-37 [143 Cal. Rptr. 365].)\" (Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal. App.3d 274, 284 [152 Cal. Rptr. 585].)\n\"CEQA assumes as inevitable an institutional bias within an agency proposing a project and provides the procedural requirements (§§ 21000 and 21100) to insure that the decision-maker does not fail to note the *908 facts and understand the serious arguments advanced by the opponents to the EIR.\" (Residents Ad Hoc, supra, p. 285.)\nThe record does not support the Foundation's contentions concerning the alleged partiality of the EIR and the City's unlawful delegation of its review functions to Neiman-Marcus. As indicated in the detailed chronology set forth above, both before and after preparation of the draft EIR, there was ample opportunity for the input and comment of all persons interested. On the basis of these, significant additions and revisions were made to the final EIR.\nThe EIR is not fatally undermined by the direct participation of the developer and his experts in the underlying environmental and other studies. As the public agency must, of necessity, work closely with the permit applicant, CEQA does not prohibit the applicant from providing the data, information and reports required for the preparation of the EIR. CEQA merely requires that the agency independently perform its reviewing, analytical and judgment functions and to participate actively and significantly in the preparation and drafting process (cf. Sierra Club v. Lynn (5th Cir.1974) 502 F.2d 43, 59). The City did no less here.\n\"`\"[I]t is doubtful that any agency, however objective, however sincere, however well-staffed, and however well-financed, could come up with a perfect environmental impact statement in connection with any major project. Further studies, evaluations and analyses by experts are almost certain to reveal inadequacies or deficiencies. But even such deficiencies and inadequacies, discovered after the fact, can be brought to the attention of the decision-makers, ....\"' (Environmental Defense Fund v. Corps of Eng., U.S. Army (8th Cir.1972) 470 F.2d 289, 297; City of Boston v. Volpe (1st Cir.1972) 464 F.2d 254, 257; Environmental Def. F., Inc. v. Corps of Eng. of U.S. Army (5th Cir.1974) 492 F.2d 1123, 1129.)\" (Residents Ad Hoc Stadium Com., supra, 89 Cal. App.3d, at p. 285.)\nThe record indicates that the Board as well as the Planning Commission were solicitous of public opinion and did not reach their decisions until the conclusion of the public comment periods and the public hearings. Thus, Woodland Hills Residents Assn., Inc. v. City Council (1980) 26 Cal.3d 938 [164 Cal. Rptr. 255, 609 P.2d 1029], is inapposite, as there the trial court found that Los Angeles (although aware of *909 the opposition), failed to seek citizen comments in time to influence preparation of the draft EIR (id., at pp. 949-950).\nThe record indicates that the EIR devotes 39 pages to a detailed discussion of the proposed Citizens Committee and McRee alternatives which involved retention of the City of Paris. The record indicates that at the hearing before the Board, a representative of Carter-Hawley-Hale acknowledged that the alternatives presented differed from the initial ones, as efforts had been made to increase the viability of the original proposals. The Citizens Committee representative told the Board of a single change in his group's proposal and ascribed no negative effects to the change. Although McRee complained of adverse changes in his proposal, no detail was or has been provided. Thus, the record does not support the Foundation's assertion that the two citizens' alternatives were misrepresented.[9]\nThe Foundation further complains that the EIR concealed another alternative, namely, purchase of the property by a Hawaii developer, Haley Pruyn. This contention is based on a memorandum dated December 7, 1978, of a telephone call from a member of the Planning Commission staff, stating that: \"Mr. Specter did offer to purchase the City of Paris building, about 1 1/2 to 2 years ago, but he learned that Carter Hawley Hale `beat him to it.'\" The memorandum further stated that if the building required renovation to bring it up to code, he would have to look into \"the economics of it\" and that \"on a scale of 1 to 10,\" his interest was in the \"6 to 7\" range. A second memo dated December 13, 1978, explained the contents of the first, i.e., Mr. Specter was in San Francisco and asked a real estate firm about the availability of the City of Paris building. Thus, at best, the record merely indicates that Haley Pruyn only made an investigation into the advisability of making an offer prior to Neiman-Marcus' purchase of the property. Thus, the record does not support the Foundation's contention that the EIR concealed the Haley Pruyn alternative. The EIR thus correctly stated that there were no alternative developers.\n(4) An EIR must describe all reasonable alternatives to the project (Pub. Resources Code, § 21061), including those capable of reducing or *910 eliminating environmental effects; the specific alternatives of \"no project\" must also be evaluated (Pub. Resources Code, §§ 21002, 21100; Guidelines, Cal. Admin. Code, tit. 14, § 15143, subd. (d)). (County of Inyo v. City of Los Angeles (1977) 71 Cal. App.3d 185, 200-203 [139 Cal. Rptr. 396]). The discussion of alternatives need not be exhaustive, and the requirement as to the discussion of alternatives is subject to a construction of reasonableness. The statute does not demand what is not realistically possible, given the limitation of time, energy and funds. \"Crystal ball\" inquiry is not required.\n(3b) The statutory requirements for consideration of alternatives must be judged against a rule of reason. There is no need for the EIR to consider an alternative whose effect cannot be reasonably ascertained and whose implementation is deemed remote and speculative (cf. Sierra Club v. Lynn, supra, 502 F.2d, at p. 62, cert. den. sub. nom. Sierra Club v. Hills, 421 U.S. 994 [44 L.Ed.2d 484, 95 S.Ct. 2001], and sub nom. Edwards Underground Water District v. Hills, 422 U.S. 1049 [45 L.Ed.2d 701, 95 S.Ct. 2668]). Absolute perfection is not required; what is required is the production of information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned. It is only required that the officials and agencies make an objective, good-faith effort to comply.\nPublic Resources Code section 21061.1 provides: \"`Feasible' means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.\" We conclude that the instant EIR in good faith discussed the alternatives.[10]\nWe note that the Foundation does not challenge the adequacy of the EIR in any other respect. Thus, we can only conclude that the EIR was adequate. We do not pass upon the EIR's environmental conclusions but only upon its sufficiency as an informational document (County of Inyo v. City of Los Angeles, supra, 71 Cal. App.3d, at p. 189.)\n(5) Next, we turn to the Foundation's contention that the Board's approval of the Project violated the substantive requirements of CEQA, *911 as set forth by Public Resources Code, sections 21002 and 21002.1, set forth, so far as pertinent, below.[11]\nSpecifically, the Foundation argues that the Board failed to consider other feasible alternatives and feasible mitigation measures.\nThe Foundation's first argument focuses on the alleged availability of other ready, able and willing developers who would preserve the City of Paris.\nOur prior discussion of the Haley Pruyn matter indicates its chimerical nature. The Foundation, however, relies chiefly on Mr. Joseph Weiner, as an alternative developer.\nThe record indicates that on January 11, 1979, nearly three weeks after the final EIR had been certified, Weiner[12] delivered a letter to Neiman-Marcus offering to buy the City of Paris and 133 Geary Street for $7 million or acquisition and carrying costs, but not including certain overhead and operating costs. As Neiman-Marcus' total costs at that time exceeded $8 million, the offer would have involved a substantial *912 loss to Neiman-Marcus. The record also indicates that Neiman-Marcus was not willing to sell the property.\nEven assuming so, we think the Board's failure to consider the Weiner offer as a \"feasible alternative\" was proper. The record indicates that the Board also found that: 1) the City of Paris did not meet the minimum building code requirements as to seismic safety; 2) any attempted rehabilitation to meet these requirements would result in substantially greater construction costs than the proposed Project; 3) there was no guarantee that the requisite rehabilitation to meet the seismic safety requirements would result in preservation of the facade and other structural elements; and 4) any other developer would be faced with these rehabilitation costs. These findings are not challenged by the Foundation and are supported by the detailed seismic analysis and by the detailed and expert cost estimation in the EIR. Thus, these findings alone support the Board's implicit finding that the Weiner offer was not a \"feasible alternative,\" and its express finding that there was no other financially and technically capable developer willing to acquire and rehabilitate the City of Paris.\n(6) The Foundation's substantive attack focuses on the Board's findings that: 1) Neiman-Marcus could not use the City of Paris building in any rehabilitated or renovated configuration as the available interior space did not meet Neiman-Marcus' merchandising requirements; 2) any alternative that contemplates rehabilitation of the existing structure would entail substantial delay with resultant higher construction costs and a substantial deferment and reduction of sales and tax revenues and other economic benefits to the City; and 3) that the benefits of the Project \"override the significant environmental and urban design effects, including the historic effects (to the extent they have not been mitigated ...), and any further mitigation measures which would eliminate, delay, or reduce those benefits are not feasible.\"\nFirst, the Foundation argues that by approving the demolition and construction permits, the Board violated the mandate of the above quoted statutes to \"mitigate or avoid\" the significant effects of the Project wherever feasible. The contention ignores the Board's specific finding that the conditions imposed on the permits by the Planning Commission constituted a major mitigation of the significant historic, visual and urban design impacts of the Project.\nThe Foundation's major argument is directed at the Board's conclusion that it was not feasible to mitigate the significant effect of the *913 Project in favor of preservation. The Foundation maintains that the Board disregarded the substantive mandate of CEQA to give greater weight to environmental values than the needs of economic growth (San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal. App.3d 584, 591 [122 Cal. Rptr. 100]). The statute, however, does not require the Board to reach a conclusion in favor of environmental values in each instance. The historic preservation aspects which deal with the quality of life involve complex and subtle considerations. Thus, subdivision (c) of Public Resources Code section 21002.1 quoted above specifically provides for the weighing of economic, social and \"other\" conditions.\nAs the court below found, the record contains ample substantial evidence to support the Board's conclusion as to the problems presented by the rehabilitation alternatives. The EIR indicated that each of the alternatives considered would have increased construction costs from $1.5 million to over $4 million. The fact that the alternatives would generate between approximately 15 to 50 percent less sales revenue for Neiman-Marcus would, therefore, greatly reduce tax revenues to the City. The Board's findings were also based on the data pertaining to the new employment opportunities and the economic multiplier effect on the City of the establishment of the specialty retail store proposed by Neiman-Marcus. The Board also considered the seismic safety and building code matters mentioned above and the needs of the City's many constituencies. The Board's conclusion that the adverse economic consequences of the preservation alternatives presented outweighed the other factors was not subject to reevaluation by the court below or this court.\n(7) Given the Board's findings, summarized above, we need not discuss at length the Foundation's contention that the Board's findings failed to comply with Public Resources Code section 21081, set forth, so far as pertinent, below.[13] The Foundation argues that the Board failed to make a necessary finding that the environmentally favorable *914 alternatives were not feasible. While the Board did not use the precise statutory term \"infeasible,\" it set forth the mitigation measures and provided nine different bases for its finding No. 3 that there was no feasible alternative to the Project. In finding No. 4, the Board stated that no alternative was capable of being accomplished in a successful manner within a reasonable time, \"taking into account economic, environmental, social and technological factors.\" We think there can be no question that the Board's detailed findings satisfy the mandate of the statute.\n(8) We turn next to the Foundation's novel contention that the City's master plan mandates the preservation of the City of Paris because of the building's designation as a state historical landmark and listing on the National Register of Historic Places.\nThe National Historic Preservation Act of 1966 (16 U.S.C. § 470 et seq.) established the National Register of Historic Places \"as a planning tool without restraint on private property interests.... No requirements of any kind are imposed on private initiative\" (36 C.F.R. § 60.2(c) (1979)). The purpose of the National Register is to provide federal agencies with a list of sites that merit study before they may be affected by any federal project. Whenever such a site may be so affected, the Advisory Council on Historic Preservation must submit comments to the federal agency involved in the project. Even in those circumstances, however, preservation of the structure is not mandatory. The comments are \"taken into account and integrated into the decision-making process, [but] the program decision rests with the agency implementing the undertaking\" (36 C.F.R. § 60.2(c) (1979)). No duties are imposed on the states (Ely v. Velde (4th Cir.1971) 451 F.2d 1130, 1139).\nCalifornia's historic preservation statutes (Pub. Resources Code, §§ 5020-5033) provide only for the registration of state historical sites and also impose no restraints on the use of those sites and do not require preservation in any particular form. The only purpose of the state program is to list and mark significant sites; no special duties are imposed on state agencies or cities.\nThe Foundation concedes that the Board reaffirmed the City's 1974 refusal to confer landmark status on the City of Paris pursuant to article 10 of the City Planning Code, which establishes the City's landmark *915 preservation program[14] and concedes that City landmark designation is not significant as state and federal designations do not trigger its provisions.\n(9) Finding no mandate in the federal, state or city preservation laws, the Foundation then argues that the general provisions of the City Planning Code that provide for development in accordance with the master plan (City Planning Code, § 101 et seq.) and urban design conservation policies (which call for the conservation of notable landmarks and care in the remodeling of older buildings) require preservation of the City of Paris.\nWe note that neither of the master plan preservation policies was mentioned by the Planning Commission's resolution 8150; rather, in describing the admitted impact of the Project, resolution 8150; referred to the urban design policies relating to transition between older and new buildings and promoting harmony, which was the basis for the mitigation measures imposed.\nFurther, the Foundation also ignores the commerce and industry element of the City's master plan. As the EIR indicates, this element provides for the improvement of downtown San Francisco's position as a prime location for specialized retail trade and support for the \"continued strength of high quality, specialty retail shopping facilities in the retail core.\" Further, as the EIR also states, the master plan calls for a balancing of aesthetic, urban design and preservation issues with economic and social issues.\nThe Foundation, of course, takes issue with the portion of the Board's finding No. 5 which declares that the establishment of a specialty retail store is in accordance with the commerce and industry element of the *916 master plan. The Board's decision to balance the elements of the master plan is within its discretion and not subject to our review.\nFinally, we turn to the Foundation's contention that the City was required to preserve the City of Paris unless Neiman-Marcus would otherwise be deprived of a reasonable return on its investment in the property. The Foundation relies on Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104 [57 L.Ed.2d 631, 98 S.Ct. 2646]. Neither the facts nor the holding of Penn Central provide support for the Foundation's argument. In Penn Central, the owners brought suit to declare the New York Landmarks Preservation Law unconstitutional when the Landmarks Preservation Commission rejected the owners' plans to build a tower in excess of 50 stories on top of Grand Central Terminal. The United States Supreme Court held there was no unconstitutional taking of property because: 1) there was no interference with the owners' present use of the building as a terminal, as it had been so used for 65 years; 2) the owners were obtaining a reasonable return on their investment; 3) there was no showing that the commission would reject all plans for use of the air space above the terminal; and 4) the owners had obtained valuable development rights which were transferable to surrounding properties because the terminal was designated as a landmark.\nThe Foundation also cites State, By Powderly v. Erickson (1979 Minn.) 285 N.W.2d 84. In that case, however, the property in question, as in Penn Central, supra, 438 U.S. 104, had landmark status and the developer offered no evidence to rebut the prima facie case for preservation that had been made. Thus, the court concluded that the defendant developer had not met its burden of proof of overcoming the prima facie case and indicated that no evidence concerning the alternatives had been submitted. Here, as indicated above, no prima facie case for the preservation of the City of Paris was made and, as discussed above, the alternatives to demolition were fully considered and reported.\nIn Lafayette Park Baptist Church v. Board of Adjustment of the City of St. Louis (Mo.C.A., No. 41816, filed Apr. 29, 1980) the property in question (like the property in Erickson and Penn Central) had landmark status under a specific city historic preservation law. The court indicated that under its prior interpretation of the ordinance, demolition was permitted where the economics of restoration preclude the landowner from making any reasonable economic use of the property, if *917 restored, or the restoration is infeasible from a technical or mechanical standpoint (slip opn., at p. 5), and then reversed for insufficiency of the evidence on the issues. In contrast, here there was evidence that restoration was infeasible because of the seismic problems, and that the economics of restoration precluded any reasonable, economic use of the property by the owner.\nIn conclusion, we reiterate that the Board complied with the procedural and substantive mandates of CEQA and properly exercised its discretion, which encompasses broad factfinding powers and the exercise of its independent judgment. We agree with the trial court that the Board proceeded in the manner required by law, properly exercised its discretion, and that substantial evidence supports its findings. CEQA does not and cannot guarantee that the governmental decisions made with the environmental and historical consequences in mind will always be those which favor the environmental and historical considerations (cf. Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283 [118 Cal. Rptr. 249, 529 P.2d 1017]).\nThe judgment is affirmed.\nMiller, J., and Smith, J., concurred.\nA petition for a rehearing was denied July 11, 1980, and appellants' petition for a hearing by the Supreme Court was denied August 21, 1980.\nNOTES\n[1] The National Trust for Historic Preservation appeared as amicus for appellants.\n[2] \"The City of Paris store, which occupied the subject site from 1896 to 1972, and played an important role in the downtown retail life of San Francisco, no longer exists; and\n\n\"The commission believes that the use of the site for a major retail activity is of utmost importance to the vitality of the downtown retail area; and\n\"There is strong evidence that the existing building on the site is structurally unsound and presents a major potential hazard in the case of a major earthquake to the numerous shoppers in the Union Square area, and abatement of this safety hazard by strengthening the existing structure would be extremely costly; and\n\"The owner of the building has stated his intention to raze the existing building, and replace it with a major retail store visually in keeping with the surrounding area; and\n\"The Commission does not believe the exterior of the City of Paris building is architecturally unique nor meritorious, and if designated as a Landmark only the exterior of the building would be controlled by the provisions of Article 10 of the City Planning Code; and\n\"The Commission notes that the rotunda, skylight and large open space concept of the interior of the building is architecturally unique and should be preserved if possible, and the owner of the property has stated his intention to reproduce a similar open space within the proposed retail store. ...\" (Italics added.)\n[3] One of the five members of the Board had recused himself for a conflict of interest; only four were eligible to vote.\n[4] The pertinent portions of each resolution may be summarized as follows in chronological order:\n\nPlanning Commission Resolution No. 8134 (adopted Dec. 21, 1978): A draft environmental impact report, dated October 13, 1978, has been prepared by the Department in connection with EE77.257, demolition of the City of Paris building and construction of a Neiman-Marcus department store on the property. The Department duly filed a notice of completion of the draft report with the secretary of the California Resources Agency, gave other notice, and requested comments as required by law, made the report available to the general public, and satisfied other procedural requirements and held a duly advertised public hearing on the draft on November 14, 1978, at which time opportunity was given for public participation and comments.\nA final EIR, dated December 21, 1978, was prepared by the Department, based upon the EIR, any consultations and comments received during the review process, any additional information that became available, and a response to any comments that raised significant points concerning effects on the environment.\nOn December 21, 1978, the Planning Commission reviewed the final EIR and found that its contents and the procedures through which it was prepared, publicized and reviewed complied with CEQA.\nThe Project described would result in demolition of the City of Paris building, which is considered by many to have potential for restoration and use, which has not been named a San Francisco landmark, but was designated State Historic Landmark No. 875 on January 13, 1975, and was placed on the National Register of Historic Places on January 23, 1975, and the Planning Commission believes that demolition of said building will have a significant effect on the environment.\nThe Project would result in a new building whose design would conflict with some policies and objectives of the urban design element of the San Francisco Comprehensive Plan, and the Planning Commission believes that the proposed design would have a significant urban design and visual effect on the local environment.\nThe Planning Commission found that the final EIR, dated December 21, 1978, is adequate, accurate and objective and certified completion of the report in compliance with CEQA. In doing so, the Planning Commission found that the Project, as proposed, would have a significant historic, visual and urban design effect on the environment of Union Square.\nPlanning Commission Resolution No. 8150 (adopted Jan. 11, 1979): The staff of the Department had met with the architect of the Project on five separate occasions and informed the architect of applicable local planning and zoning provisions of the master plan and planning code. A great many contacts to provide information, respond to questions and generally accommodate the needs of the applicant and interested parties had occurred between the staff and the applicant's representatives and the interested public. The proposed building would incorporate the rotunda and dome of the City of Paris building in the new building.\nBefore acting on the building permit, the Planning Commission reviewed and considered the information in the EIR and found that the following considerations override the significant historic effects on the environment:\n1. The City determined, in a series of actions in 1974, including Planning Commission Resolution No. 7212, that the existing City of Paris building did not merit designation as a City landmark, for reasons which included: the fact that the City of Paris store no longer exists, that the owner of the building has stated an intention to replace it with a major retail store visually in keeping with the surrounding area, that the exterior of the existing building is not architecturally unique or meritorious, and that the owner has stated its intention to preserve the dome and rotunda.\n2. The final EIR indicates that revenues to the owner from the proposed project and potential resulting sales and payroll tax revenue to the City initially would be 18 to 100 percent higher than the revenues estimated to be produced by the alternatives discussed in the final EIR for reuse of the existing building, and this difference could become greater over time if the alternative failed to meet the Project sponsor's merchandising needs.\n3. Neiman-Marcus has indicated that alternative proposals that would involve use of the existing building would be infeasible from a merchandising standpoint.\n4. The final EIR indicates that alternatives that would involve Neiman-Marcus' use of the existing building, assuming one was feasible for Neiman-Marcus' use, would cause delays of up to nine months in construction initiation and one year or more in opening a retail specialty store, over and above the time predicted for implementation of the present proposal, with accompanying losses of employment and City revenues.\n5. Use of the existing building by another developer, if another developer could purchase and use the site, would increase uncertainty as to a schedule of construction with possible delays in the site's contribution to the City's retail trade, and potential resulting losses in City revenues, in employment and in economic multiplier effects from the new jobs and commercial activity proposed by the Project sponsor in downtown San Francisco.\n6. The proposed Project would provide about 150 new construction jobs and 350 to 450 permanent jobs.\nThe Commission further found that the significant visual and urban design impacts would be mitigated or substantially lessened by the conditions that are made part of this action pertaining to architectural design, pedestrian/vehicular circulation and landscaping.\n[5] The statute provides: \"Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.\n\n\"In any such action, the court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record.\" (Italics added.)\n[6] The statute provides: \"In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.\" (Italics added.)\n[7] This section, added by Statutes of 1976, chapter 1312, section 19, provides for preference \"over all other civil actions.\"\n[8] We may take judicial notice of the City Charter provisions (Evid. Code, §§ 452, subd. (b), 459; City and County of San Francisco v. Pacello (1978) 85 Cal. App.3d 637, 642, fn. 1 [149 Cal. Rptr. 705]).\n[9] Equally without merit is the contention made for the first time at oral argument that the potential tax incentives for preservation afforded by the Tax Reform Act of 1976 (26 U.S.C. § 191) and the Revenue Act of 1978 were not considered. The record indicates that these were considered but rejected as insignificant in relation to the costs of rehabilitation.\n[10] In view of this conclusion, we need not reach the Foundation's contentions concerning additional time for an impartial analysis of feasible alternatives.\n[11] Section 21002: \"The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects, and that the procedures required by this division are intended to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects. The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof\" (italics added).\n\nSection 21002.1: \"In order to achieve the objectives set forth in Section 21002 the Legislature finds and declares that the following policy shall apply to the use of environmental impact reports prepared pursuant to the provisions of this division:\n\"(a) The purpose of an environmental impact report is to identify the significant effects of a project on the environment, to identify alternatives to the project, and to indicate the manner in which such significant effects can be mitigated or avoided.\n\"(b) Each public agency shall mitigate or avoid the significant effects on the environment of projects it approves or carries out whenever it is feasible to do so.\n\"(c) In the event that economic, social, or other conditions make it infeasible to mitigate one or more significant effects of a project on the environment, such project may nonetheless be approved or carried out at the discretion of a public agency, provided that the project is otherwise permissible under applicable laws and regulations\" (italics added).\n[12] Weiner's letter indicated that he was the developer and owner of Firehouse No. 1, and developer and coowner of One Jackson Place in San Francisco.\n[13] \"Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall approve or carry out a project for which an environmental impact report has been completed which identifies one or more significant effects thereof unless such public agency makes one, or more, of the following findings:\n\n\"(a) Changes or alterations have been required in, or incorporated into, such project which mitigate or avoid the significant environmental effects thereof as identified in the completed environmental impact report.... ...\n\"(c) Specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report\" (italics added).\n[14] City Planning Code section 1011, so far as pertinent, provides: \"(a) The Advisory Board may recommend, and the Planning Commission may approve, a list of structures of historical, architectural or aesthetic merit which have not been designated as landmarks and are not situated in designated historic districts. The said list may be added to from time to time. The purpose of this list shall be to recognize and encourage the protection, enhancement, perpetuation and use of such structures. The Advisory Board and the Planning Commission shall maintain a record of historic structures in the city which have been officially designated by agencies of the state or federal government, and shall cause such structures to be added to the aforesaid list.\n\n\"(b) Nothing in this Article 10 shall be construed to impose any regulations or controls upon such structures of merit included on the said list and neither designated as landmarks nor situated in historic districts\" (italics added).\n\n", "ocr": false, "opinion_id": 2134370 } ]

[ "253 P.3d 393" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n253 P.3d 393 (2011)\nWILLIAMS\nv.\nTILAYE.\nNo. 85570-6.\nSupreme Court of Washington, Department II.\nApril 27, 2011.\nDisposition of Petition for Review Granted.\n", "ocr": false, "opinion_id": 2449722 } ]

[ "902 P.2d 605", "136 Or. App. 602" ]

[ { "author_str": "Armstrong", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n902 P.2d 605 (1995)\n136 Or. App. 602\nCITY OF CANBY, a municipal corporation and political subdivision of the State of Oregon, Respondent,\nv.\nMichael W. RINKES and Janet K. Rinkes, husband and wife, Appellants.\nMichael W. RINKES and Janet K. Rinkes, husband and wife, Appellants,\nv.\nCITY OF CANBY, a municipal corporation and political subdivision of the State of Oregon, Respondent.\n90-08-180 and 90-08-381; CA A79940.\nCourt of Appeals of Oregon.\nArgued and Submitted February 10, 1995;\nResubmitted on Record and Briefs July 14, 1995.\nDecided September 13, 1995.\n*606 Albert J. Bannon, Portland, argued the cause for appellants. With him on the briefs was Black Helterline.\nJohn R. Dudrey, Portland, argued the cause for respondent. With him on the brief were Donald R. Stark and Williams, Fredrickson & Stark, P.C.\nBefore WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.\nARMSTRONG, Judge.\nMichael and Janet Rinkes appeal from a supplemental judgment entered in a consolidated case.[1] The consolidated case consists of an action by the City of Canby to condemn a parcel of property owned by the Rinkeses, and an action by the Rinkeses to enjoin the city from condemning the property and to obtain specific performance and damages for the city's alleged breach of a lease of a portion of it. The supplemental judgment condemned approximately 14 acres of the Rinkeses' property, and awarded the Rinkeses damages and attorney fees on the condemnation and lease claims. The judgment was based, in part, on an arbitration award that determined the amount of damages and attorney fees.\nThe facts are as follows: In August 1989, the Rinkeses bought approximately 30 acres of land in Canby. The city had a lease with the prior owner of the land to use a portion of the property as a storm-water outfall. After the Rinkeses purchased the property, the lease was terminated. The lease required the city to restore the property to its pre-lease condition on termination of the lease. The city did not act to restore the property, and the Rinkeses spent time and money doing so.\nOn August 16, 1990, the city filed a complaint against the Rinkeses seeking condemnation of their property for use as a storm-water collection and treatment site. On August 29, 1990, in turn, the Rinkeses filed a complaint against the city seeking (1) a decree of specific performance requiring the city to remove a storm drain pipe and drainage ditch that the city had placed on the property under its lease, (2) a permanent injunction prohibiting the city from taking possession of the property and (3) damages *607 resulting from the city's alleged breach of the lease.\nThe court consolidated the city's condemnation action with the Rinkeses' breach-of-lease action for trial. The court also segregated certain issues for trial. The court directed that, first, the issues whether the city had breached the lease and whether specific performance was an appropriate remedy for the breach would be tried to the court. Second, the legal issues in the condemnation action, which would decide whether the city had the right to proceed with condemnation, would then be tried to the court. Finally, a jury would determine the value of any property condemned and the amount of any recovery by the Rinkeses if the city were found to have breached its lease.\nOn July 18, 1991, the court entered a judgment disposing of the legal issues in the breach-of-lease action. The court found that the lease had been terminated on July 13, 1990, and that the city had breached it. The court concluded that the lease covered only a small portion of the Rinkeses' property and, as a consequence, that alleged injury to portions of the Rinkeses' property not covered by the lease \"was beyond the scope of the lease and constituted a trespass\" to the property. The court denied the Rinkeses' request for specific performance and ordered that the damages for the city's breach of the lease would later be determined by a jury.\nOn October 7, 1991, the trial court resolved the legal issues in the condemnation action and issued an order in which it upheld the city's decision to condemn the Rinkeses' property. The damages due for condemnation of the property and for breach of the lease were then set to be heard by a jury.\nOn October 22, 1991, the day the jury trial was to begin, the parties reached a settlement, the terms of which were stipulated in open court. The Rinkeses attended the hearing at which the stipulated settlement was entered, and they specifically approved the settlement on the record. The parties agreed that the city would acquire approximately 14 acres of the Rinkeses' property, and that the city would have an easement across the remaining portion of the property to maintain a storm-water outlet pipe. The parties also agreed that\n\"[t]he determination of dollars will be made by arbitration, binding arbitration, and the City's portion [of the property] which it's acquiring will be evaluated by the arbitration process for the fair cash [value] of the property they're acquiring plus the easement.\n\"Also this case settles a lease breach case which the Court found the City to be liable for, and the damages for the breach of that lease will also be done by binding arbitration.\"\nThe Rinkeses' attorney asked the court to confirm that the settlement covered the \"breach of lease case only and the condemnation.\" The court confirmed that understanding. It then approved the settlement, stating that the settlement was \"binding upon the parties,\" and directed the parties to comply with it. The court stated that the result of the arbitration would be entered as the final judgment of the court.\nDisputes thereafter arose between the parties about the arbitration to be conducted under the settlement. The court held a hearing on December 23, 1991, to address one of the disputes, which concerned the type of evidence that could be presented to the arbitrators. As a result of the hearing, the court entered an order that stated that the \"arbitrators selected by the parties in this matter will decide the nature of the arbitration pursuant to the stipulation of the parties previously agreed upon and on the record in this matter.\"\nOn January 9, 1992, the trial court entered a judgment dismissing the condemnation action. The judgment reflected that the matter had been \"fully compromised and settled,\" and stated that the judgment would be vacated \"upon entry of a supplemental judgment within 60 days from the date of this order.\" The court did not enter a similar judgment in the breach-of-lease action.\nAs the parties prepared for the arbitration, it became apparent to the city that the Rinkeses intended to argue that the city had breached the lease a year earlier than the date determined by the court. The Rinkeses *608 also intended to ask the arbitrators to award damages for injury to property outside the property described in the lease—injury the court earlier had ruled \"was beyond the scope of the lease and constituted a trespass.\" A resolution of both those issues in favor of the Rinkeses in the arbitration would increase the damages they could recover.\nOn January 20, 1992, the city filed a motion to limit the arbitration to the issues framed by the trial court's prior orders and findings of fact and conclusions of law in the case. The city sought that relief because it believed that the Rinkeses were seeking to arbitrate issues beyond those the parties had agreed to arbitrate under the settlement agreement. The Rinkeses responded that the court lacked authority to restrict the arbitration in any way. The court held a hearing and granted the city's motion on February 3. The court stated that the arbitration was to be based on the court's prior rulings, and ordered the parties \"to proceed to arbitration pursuant to the terms of the settlement agreement.\"\nOn February 6, the Rinkeses filed in the Supreme Court a petition for a writ of mandamus against the trial court and a motion to stay the proceedings at the trial level. The Supreme Court orally denied the motion for a stay on February 7.[2] That same day, the Rinkeses filed a notice of appeal to the Court of Appeals from the judgment of dismissal in the condemnation action.\nOn February 10, the arbitrators held a hearing to determine the damages and attorney fees to be awarded to the Rinkeses. The Rinkeses attended the hearing and argued that the arbitrators should postpone the arbitration until this court ruled on their appeal. They also argued that the arbitrators lacked jurisdiction to proceed because an appeal had been filed. The arbitrators declined to postpone the arbitration. The Rinkeses and their attorney then left the hearing. The record indicates, however, that evidence was presented on the Rinkeses' behalf at the arbitration. The arbitrators proceeded with the arbitration and made an award of damages and attorney fees to the Rinkeses.\nOn February 21, the trial court entered a supplemental judgment condemning a portion of the Rinkeses property and awarding them damages based on the arbitration award. On March 10, 1992, the Rinkeses filed a notice of appeal from the supplemental judgment.\nIn August 1992, we entered an order dismissing the Rinkeses' appeals. We explained that neither the order dismissing the condemnation action nor the supplemental judgment was a final, appealable judgment. With regard to the supplemental judgment, we explained that once the February 7, 1992, appeal had been filed, it deprived the trial court of jurisdiction to enter a judgment based on the arbitration award. On the other hand, we noted that ORS 19.033(1), which limited the trial court's jurisdiction once the appeal was filed, applied only to judicial proceedings, and did not deprive the arbitrators of jurisdiction to proceed with the arbitration.\nOn August 31, the trial court withdrew its supplemental judgment. The Rinkeses filed objections to entry of a new supplemental judgment and argued that the trial court had improperly limited the arbitration by ordering that it was controlled by the trial court's findings of fact and conclusions of law. The Rinkeses also filed a motion to set aside the arbitration award and to reschedule the case for arbitration or trial. The court held a hearing and denied the relief requested by the Rinkeses. On May 6, 1993, the court re-entered the supplemental judgment it previously had withdrawn. This appeal followed.\nWe initially address the Rinkeses' contention that the court's order compelling them to arbitrate pursuant to the settlement agreement should be reversed because the trial court lacked jurisdiction to enter it. They claim that the court lost jurisdiction to enter such an order when it entered its judgment dismissing the condemnation action after the parties had agreed to settle their claims by arbitration.\nIn dismissing the Rinkeses' previous appeals, we stated that no final judgment had been entered in either the condemnation action *609 or the breach-of-lease action. Because no final judgment had been entered disposing of all the parties' claims, the trial court retained jurisdiction over the consolidated case. ORCP 67B; see David M. Scott Construction v. Farrell, 285 Or. 563, 569-70, 592 P.2d 551 (1979) (decree not final or appealable where the court reserved jurisdiction to enter supplemental judgment and award attorney fees). Both parties anticipated that the trial court would enter a supplemental judgment that would condemn the property and award damages and attorney fees to the Rinkeses in the consolidated case, and it was within the court's authority to issue orders compelling compliance with the settlement agreement. See Davis v. Brown, 280 Or. 561, 564-65, 571 P.2d 912 (1977) (where parties entered into a stipulated settlement in open court and intended to make a binding contract, court should specifically enforce the stipulated contract). Hence, the trial court had jurisdiction to enter orders in the case, including the order compelling arbitration.\nWe next address the Rinkeses' contention that the trial court erred by ordering that the arbitrators were bound by the trial court's earlier rulings in the case. They contend that the settlement agreement, which provided that the arbitrators would determine the amount of damages, can be construed to allow them to submit to the arbitrators for decision two issues that were previously decided adversely to them by the court. Those issues are the date on which the lease was breached and the amount of land that is subject to a claim for damages for breach of the lease. They argue that it was within the province of the arbitrators to construe the arbitration provision of the settlement agreement to determine the issues that are arbitrable. The city counters by arguing that the settlement agreement is unambiguous and that it was proper for the court to limit the arbitration to the issues framed by that agreement.[3]\nA stipulated settlement, agreed to in open court, is a binding contract. Kleiner v. Randall, 58 Or.App. 126, 131, 647 P.2d 956 (1982). If an agreement to arbitrate certain issues is clear as to the issues that are arbitrable, then a court properly can remove from consideration by the arbitrators issues that the parties have not agreed to arbitrate. Ostrer v. Pine-Eagle School Dist., 40 Or. App. 265, 272, 594 P.2d 1296 (1979); Portland Teachers v. School Dist., 27 Or.App. 247, 250, 555 P.2d 943 (1976).\nWe agree with the city that the parties' agreement to arbitrate the damages due the Rinkeses is unambiguous. At the time the settlement agreement was made, the court already had resolved the legal issues in the consolidated case. The only issues that remained to be tried were (1) the damages to be awarded the Rinkeses for the breach of the lease that the court had found to have occurred, (2) the value of the condemned property and (3) the amount of attorney fees to be awarded in the litigation.\nThe Rinkeses argue, nonetheless, that the issues of when the lease was breached, and the extent of the land that was damaged, could still be argued to the arbitrators. As was stipulated in open court, however, the parties agreed to arbitrate \"the damages for the breach of [the] lease\" that \"the Court [had] found the city to be liable for.\" (Emphasis supplied.) That provision cannot reasonably be construed to mean that the parties had agreed to arbitrate the issues of when the lease was breached and what land was covered by it. Those issues previously had been resolved by the court and would not have been tried to the jury had the case gone to trial. Before agreeing to the settlement, the Rinkeses repeatedly had tried to get the court to change its ruling about the date of the breach, and the court had refused to do so.\nThe court also had determined what land was covered by the lease and, hence, was *610 subject to a claim for damages for breach of the lease. The Rinkeses may have disagreed with the court's decision on that issue, but the agreement to arbitrate damages cannot be understood to be an agreement to relitigate what land was covered by the breach.[4] It was proper for the court to limit the arbitration to the issues the parties had agreed to arbitrate, which were those framed by the court's prior rulings.\nThe Rinkeses argue that, if the settlement agreement provided that only the amount of compensation due for the predetermined breach and for the condemned land would be arbitrated, then they never agreed to such an arrangement. They contend that there was no \"meeting of the minds,\" and, so, the settlement agreement must be set aside. As we have said, the settlement agreement was clear. If the Rinkeses were operating under a faulty assumption about its meaning, that is not a valid reason to set it aside. Davis, 280 Or. at 564, 571 P.2d 912 (holding that compromise agreements will not be set aside for ordinary mistakes); Walcutt v. Inform Graphics, Inc., 109 Or.App. 148, 151, 817 P.2d 1353 (1991), rev. den. 312 Or. 589, 824 P.2d 418 (1992) (settlements not rendered unenforceable by negligent mistakes).\nFurthermore, Oregon subscribes to the objective theory of contracts. See, e.g., Harty v. Bye, 258 Or. 398, 403, 483 P.2d 458 (1971); Real Estate Loan Fund v. Hevner, 76 Or.App. 349, 354, 709 P.2d 727 (1985). That means that whether the parties entered into an agreement does not depend on whether the parties had the same subjective understanding of their agreement, that is, on whether their \"minds met\" on the same understanding. Rather, it depends on whether the parties agreed to the same, express terms of the agreement, and on whether those terms constitute an enforceable agreement. Here, the parties agreed to the terms of their settlement in open court. Hence, the settlement agreement is valid even if the Rinkeses' subjective understanding of it was different from the city's and the court's understanding.\nThe Rinkeses raise other arguments on appeal, but they do not require discussion.\nAffirmed.\nNOTES\n[1] Before the oral argument in this case, the attorney for the Rinkeses withdrew, citing a conflict of interest. After the Rinkeses sought to hire other counsel, the Rinkeses and the original attorney agreed that the attorney would present the oral argument for the Rinkeses, which he did. Several months after the argument, the Rinkeses wrote to the court expressing dissatisfaction about the argument. In response, by order dated June 12, 1995, the court gave the Rinkeses 28 days to obtain new counsel to reargue the case for them. The order stated that reargument of the case was conditioned on new counsel for the Rinkeses filing an appearance within the 28-day period. The Rinkeses did not obtain new counsel within that time. Instead, they informed the court that they would argue the case themselves. The appellate rules provide that \"if one party appears pro se [in the Court of Appeals], the case will be submitted without argument by any party.\" ORAP 6.05(2). Accordingly, we will treat the case as having been submitted on the briefs without argument.\n[2] The court later denied the mandamus petition on February 14, 1992.\n[3] The parties agree that the Oregon arbitration statutes, ORS 36.300 et seq, do not apply to their settlement agreement, because the agreement was not in writing. We accept the parties' agreement for the purpose of resolving this dispute. See Halvorson-Mason Corp. v. Emerick Const. Co., 304 Or. 407, 745 P.2d 1221 (1987) (procedure in ORS 33.310 to ORS 33.330 not applicable in the absence of a written agreement). Consequently, the Oregon arbitration statutes have no bearing on our decision.\n[4] In effect, the Rinkeses contend that the arbitration of damages for breach of the lease was to be based on the court's decision that the city had breached the lease, but not on its decisions about when the breach had occurred and what land was covered by the lease, even though the court's decisions on all of those issues were part of the same ruling. The parties' agreement to arbitrate damages cannot reasonably be understood to distinguish among the court's decisions in that way.\n\n", "ocr": false, "opinion_id": 2607025 } ]

[ "251 F.2d 794" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/251/251.F2d.794.15539_1.html", "author_id": null, "opinion_text": "251 F.2d 794\n Forrest Silva TUCKER, Appellant,v.UNITED STATES of America, Appellee.\n No. 15539.\n United States Court of Appeals Ninth Circuit.\n Jan. 17, 1958.\n \n Forrest Silva Tucker, in pro. per.\n Herbert E. Selwyn, Los Angeles, Cal., for appellant.\n Laughlin E. Waters, U.S. Atty., Louis Lee Abbott, Leila F. Bulgrin, Asst. U.S. Attys., Los Angeles, Cal., for appellee.\n Before BONE, ORR and CHAMBERS, Circuit Judges.\n BONE, Circuit Judge.\n \n \n 1\n Appellant was indicted, tried before a jury and convicted for a violation of Section 751 of Title 18 U.S.C.A. Section 751 reads as follows:\n \n \n 2\n 'Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both. June 25, 1948, c. 645, 62 Stat. 734.'\n \n \n 3\n The gravamen of the charge laid in the indictment is that appellant 'who was then and there in the custody of the Attorney General of the United States and his authorized representative by reason of the defendant's conviction in the United States District Court of an offense, namely: bank robbery, a felony, did escape and attempt to escape from such custody.' The offense in question is charged to have occurred on or about November 5, 1956 in Los Angeles County, California.\n \n \n 4\n Appellant had been taken to Los Angeles, California. At the time of the events here narrated, he was (according to his brief) serving a term of 25 years imprisonment in Alcatraz penitentiary on his conviction of armed robbery, having been committed to that federal penal institution on or about May 20, 1953. His removal to Los Angeles was to secure his testimony in a matter then pending in the United States District Court for the Southern District of California, and his removal was effected under a writ of habeas corpus ad testificandum, the validity and regularity of which are not questioned on this appeal.\n \n \n 5\n The evidence at trial is before us in a lengthy record provided at government expense. The evidence introduced by the government established, or tended to establish, the following facts.\n \n \n 6\n While being held in Los Angeles, appellant was detained in the Los Angeles County Jail. Los Angeles County had a then unexpired and still effective contract with the United States Bureau of Prisons to detain and care for federal prisoners in its County Jail while (as in this case) such a prisoner is being held in Los Angeles.1\n \n \n 7\n This contract had been executed by the United States Department of Justice through its Bureau of Prisons (which is a part of the United States Department of Justice) and had been approved by the United States Marshal for the Southern District of California. It had also been adopted by the Board of Supervisors for the County of Los Angeles. Facts in evidence at trial also established that the United States Marshal's Office for the Southern District of California operates within the United States Department of Justice under the Direction and supervision of the Attorney General of the United States.\n \n \n 8\n The evidence also shows that under the said contract, and while acting under such direction and supervision, the said United States Marshal placed appellant in the Los Angeles County Jail. The above mentioned contract, and the attached regulations (see footnote 1) do not provide or require that the United States Marshal or his deputies should be stationed in the County Jail to there personally oversee every or any aspect of appellant's detention since the jail was operated under supervision of the Sheriff of Los Angeles County. Under the contract and attached regulations, it was the responsibility of the said Sheriff to 'keep the prisoner in safe custody.' And, as indicated in footnote 1, the said contract (and attached regulations) with Los Angeles County provides for medical care.\n \n \n 9\n While being held in the Los Angeles County Jail, appellant complained of and suffered from a painful physical ailment and made several visits to the so-called 'Jail Hospital' located in the jail itself. Because of the apparently serious character of appellant's physical trouble, the jail doctor directed that appellant be sent to the Los Angeles County General Hospital for further study in regard to possible prostatitus or uretal calculus. This procedure was in accord with the terms of the contract. (In this connection the evidence shows that the Los Angeles County 'Jail Hospital' could provide only minor medical attention for jail inmates.) Based upon this advice and directive from the jail doctor, appellant was taken by Los Angeles County Deputy Sheriffs to the Los Angeles County General Hospital on November 4, 1956, for an examination. (He had also been taken to this hospital on previous occasions for a physical examination.)\n \n \n 10\n Evidence established that while the Los Angeles County Jail was under the general control of the County Sheriff, one of his deputies was charged with the supervision of personnel and of the operation of this jail.\n \n \n 11\n Facts in evidence show that when (as here) it is necessary that a federal prisoner held in the County Jail be removed to the Los Angeles County General Hospital for examination and/or treatment, such a prisoner is there lodged in what is designated as the 'Los Angeles County Jail Unit' in the said hospital. This 'unit' was and is a place of imprisonment in the hospital, that is to say, a 'lock-up' or 'prison ward' in an area on the 13th floor of the hospital building. Like the regular county jail this 'unit' has sleeping facilities but apparently is not equipped with such highly technical facilities as x-ray equipment.\n \n \n 12\n The evidence also established that the Los Angeles County Board of Supervisors had, by formal ordinance, designated that a portion of the Los Angeles County Hospital 'is considered a portion of the Los Angeles County Jail.' The 'portion' on the 13th floor, so made a Los Angeles County Jail Unit by ordinance, is the County Jail facility provided for federal prisoners just above mentioned.\n \n \n 13\n The evidence in this case establishes beyond a shadow of doubt that appellant not only claimed that he was, but actually was, for several days, plagued by certain symptoms which clearly indicated that he might be, or probably was, suffering from a dangerous physical ailment. It was this serious condition that caused his removal to the County General Hospital so that he would be in an institution where facilities for proper emergency medical and x-ray examination were available and close at hand. In the absence of the technical service there available appellant might have died or suffered irreparable harm.\n \n \n 14\n On the morning of November 5, 1956, while appellant was in bed in the 'Jail Unit' of the Los Angeles County General Hospital, he was given certain preliminary medication to prepare him for a required x-ray examination in the 'Cystoscopic Clinic' of the hospital which was located on the 4th floor. For this purpose it was necessary to take appellant to said 'clinic' where an examination would or might reveal the exact nature of his physical disorder. To remove him to this 'clinic,' a county-employed hospital orderly placed him on a conventional hospital 'stretcher.' He was then wearing an ordinary hospital gown and his trousers. The orderly had been assigned for duty in the 'Jail Unit' or portion of the hospital.\n \n \n 15\n The orderly 'wheeled' the stretcher over to an elevator door located just in front of the 'Jail Unit' where a deputy sheriff of Los Angeles County handcuffed him. The stretcher was then rolled into the elevator by the orderly and the elevator lowered to the 'clinic' (4th) floor. Later on that floor, and while the stretcher was being pushed down a hall toward the 'clinic' door, appellant abruptly jumped from the stretcher and ran down a nearby hallway toward a stairway. The orderly gave chase, grabbed appellant, and a scuffle ensued between the two men on the stairway. Appellant forcibly broke away from the orderly and from all other pursuers and finally managed to run out of the hospital building into the street. He there took possession of a nearby car in which the owner had left ignition keys, and drove off. He was later captured by state officers on the same day a few miles south of Bakersfield, California, while driving north in the stolen car. When seized by these state officers he was still wearing his handcuffs.\n \n Appellant's Contentions\n \n 16\n Appellant raises no question here concerning the validity of his 'custody' in the County Jail or while in the County 'Jail Unit' in the hospital. Nor does he object to the rulings of the trial court on questions of admissibility of evidence at trial, or any of the court's instructions to the jury. He assures us that his sole ground for appeal is that there was insufficient evidence to prove beyond a reasonable doubt that, at the time of the alleged escape (on the 4th floor) he was 'in the custody of the Attorney General of the United States or his authorized representative.'\n \n \n 17\n In support of this single contention, his argument is two-pronged: The facts in evidence do not (1) sufficiently prove that the Attorney General authorized the Sheriff of Los Angeles County to have custody of appellant, and (2) there was no proof that the Assistant Director of the Bureau of Prisons was authorized by the Attorney General of the United States to enter into contracts with state or local agencies pertaining to the care and custody of prisoners. For reasons later noted, we reject argument (1) as wholly without merit. The contract itself is a sufficient refutation of this particular argument.\n \n \n 18\n When the Government rested its prima facie case, appellant's counsel moved for a 'dismissal.' We assume that he was, by this form of motion, seeking a directed verdict of acquittal. In presenting argument on the motion, counsel urged (1) that appellant was not 'in custody' at the time he left the Los Angeles County General Hospital, this for the reason that the testimony shows that 'this is only a designated portion of the hospital, which is the County Jail, which is the 13th floor,' and (2) 'appellant was not in (such) jail at the time, that he was not in the custody of an authorized representative of the United States Marshal * * * he was in the custody of an orderly of the hospital, who was not an authorized representative of the Marshal,' and (3) that 'the authority of the Los Angeles County Sheriff to handle prisoners for the United States Marshal is a delegated power and he can't delegate that power to a third person or to a third entity.' We assume that the reference to a 'third person' or 'third entity' is a reference to the hospital and to the 'orderly.'\n \n \n 19\n In answer to a question by the court, appellant's counsel agreed that the Attorney General could delegate the power (of custody) to a non-federal agency such as the Sheriff of Los Angeles County, but that the Sheriff could not 'turn around and delegate that power;' that (appellant's) counsel did not want prisoners having kidney stones operated on by sheriffs, but 'you might take them over to a deputized office and tell the nurse to watch them.'2\n \n \n 20\n The court denied appellant's here noted motion.\n \n \n 21\n Subsequently, and at the end of all of the evidence, counsel for appellant again moved for a judgment of acquittal 'on the same grounds,' i.e., that the defendant 'was not in custody' of the Attorney General at the moment he broke away from the clutches of the hospital orderly and ran out of the hospital.\n \n \n 22\n The substance of appellant's argument is that the evidence shows (1) that during the period when he was being removed by an orderly from the 13th floor hospital 'Jail Ward' to the 'clinic' on the 4th floor, he was not accompanied by a Deputy Sheriff of Los Angeles County (or not being 'watched' bt a nurse), and (2) this fact indicates that the Attorney General of the United States somehow lost and/or abandoned 'custody' of him as soon as he was removed from the 13th floor 'Jail Ward' on the stretcher. This contention is advanced even though he was then handcuffed and wearing a hospital gown. It is the basis of his claim that the indictment charge lacks support in the evidence.\n \n \n 23\n Appellant's theory of loss or abandonment of 'custody' is untenable. In Giles v. United States, 9 Cir., 157 F.2d 588, certiorari denied 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 this Court was confronted with a problem of 'custody' which in principle closely parallels that posed in the instant case. Giles was a prisoner in the federal prison on Alcatraz Island. He was working with other prison inmates on a dock on the Island located about 3/8 of a mile from the prison proper. He somehow managed to secrete himself on an Army vessel then 'docked' at the Island and was later taken from the vessel and returned to the prison. He was indicted, tried and convicted for attempting to escape from the custody of the Attorney General.\n \n \n 24\n Giles argued to us that he was not in actual custody of anyone while away from the prison house and while going about the chores assigned to him on this dock, therefore he could not be deemed to have attempted to escape from custody of the Attorney General. The specific reason advanced to sustain this argument was that he was not at all times under the observation of one or the other of the regular Alcatraz prison guards.\n \n \n 25\n In disposing of this argument, this Court held that it was without force--that the statutory term 'custody' as applied to the situation of appellant, is not so narrow and restricted-- that appellant likens the case to one where the custodian of a prisoner purposely abandons his charge, leaving him free to go his own way. We pointed out that there was no abandonment of custody in this instance, and that the question of custody was submitted to the jury as one of fact in an instruction stating that, in order to convict, the evidence must show beyond a reasonable doubt that Giles was actually in custody at the beginning of the alleged attempt to escape.3\n \n \n 26\n In commenting on arguments of counsel in the Giles case, we pointed out that 'it was not in the circumstances of this case essential to custody that the guard follow the prisoner around and keep him every moment under observation.' So much can be said concerning appellant's contentions in the instant case that it was necessary that a Deputy Sheriff of Los Angeles County be in constant watch over him (or at least a nurse by watching him) during his floor-to-floor trip to the hospital 'clinic.'\n \n \n 27\n Further reiterating the foregoing argument, appellant urges that 'it certainly was not in the contemplation of the parties to the contract that a convicted armed robber, sentenced to a term of twenty-five years in a maximum security prison should be allowed in the civilian portion of a large hospital not accompanied by a guard.' The rationale of the Giles decision (so far as regards 'custody') calls for outright rejection and repudiation of the theory that (acting under the provisions of the contract) a prompt and commendable effort of jail authorities to meet a dangerous threat to a prisoner's health by providing necessary emergency treatment in the here hospital clinic (which might save his life) can be tortured into a legal and/or wilful 'abandonment of custody' over him. An argument based on this theory is so outlandish as to be void of a semblance of merit or common sense. It is not the policy of the Federal Government to let prisoners die for want of available medical attention.\n \n \n 28\n Appellant's final argument is that there was no proof that the Assistant Director of the Bureau of Prisons was authorized by the Attorney General to enter into contracts like the here involved contract with Los Angeles County.\n \n \n 29\n This contract was a public official document and speaks for itself. It reveals on its face that it was signed by the Assistant Director of the Bureau of Prisons 'By direction of the Director of the Bureau of Prisons.'4 So far as the evidence shows, the Bureau of Prisons was operating under, and recognizing, the contract at all times here pertinent, and was paying to Los Angeles County all amounts due that county for appellant's 'keep' in the Jail and the amounts due for the treatment given him in the hospital 'clinic.' Furthermore, the record shows that appellant offered no objection when the contract was placed in evidence, and no instruction was requested concerning its validity or the mode and manner of its execution. Nor was the obvious fact that the Bureau of Prisons and Los Angeles County were, at all times here pertinent, recognizing and operating under the provisions of this contract, brought into question at trial.\n \n \n 30\n The rule has been expressed that the authority to execute such a contract cannot be challenged on appeal if there was a failure to object to its introduction and use as evidence at trial; that such a failure to object constitutes a waiver of the right to object, and admits, among other things, the authority of the person executing the contract.\n \n \n 31\n In Collins v. Streitz, 95 F.2d 430, 436, this Court quoted with approval from Wigmore on Evidence (2nd Edition, section 2132) where the following principle is stated:\n \n \n 32\n 'When the opponent fails to object to the admission of the (executed) document, this is, of course, on general principles * * * a waiver as to the need of any evidence authenticating its genuineness; that this waiver is commonly held to extend to the fact of authority of an agent purporting to sign the document for a principal, but not as to the legal sufficiency of the instrument for any purpose.'\n \n \n 33\n In footnote 7 to our Collins opinion, Judge Stephens cites (among other apposite cases) two criminal cases from this Circuit, Wells v. United States, 257 F. 605; Hart v. United States, 11 F.2d 499, certiorari denied, 273 U.S. 694, 47 S.Ct. 92, 71 L.Ed. 844, supporting the doctrine that 'In the federal courts no error can be predicated on the admission of evidence unless the objection thereto is specific.'\n \n \n 34\n The challenge to the authroity of the Director of the Bureau of Prisons to direct the contract to be executed by his depute, the Assistant Director of the Bureau of Prinsons, is rejected. The verdict of the jury was just and proper, and the judgment of the lower court thereon should be and is affirmed.\n \n \n 35\n CHAMBERS, Circuit Judge, (concurring).\n \n \n 36\n In all of the foregoing opinion, I concur. However, I think the fourth alternative under Section 751 (See 18 U.S.C.A. 751)-- '* * * from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner * * *'-- would have been a sufficient basis for an indictment, rather than the harder ground chosen by the district attorney. It is not the case before us, but assuming there had been no contract with Los Angeles County to hold prisoners for the United States Bureau of Prisons, I am satisfied there would still have been a violation by Tucker of the statute when he took his own leave. I am sure that Judge Bone does not mean to imply that 'custody of the Attorney General or his authorized representative' is a necessary prerequisite to a violation, but lest someone think the indictment form here is always required, I add this dictum.\n \n \n \n 1\n This contract was dated July 1, 1955, and was, by its terms, effective for a period not to exceed three years from that date. The events with which we are here concerned all occurred within the effective period of the contract which was entered into between the United States Department of Justice through its Bureau of Prisons, and the County of Los Angeles located in the Federal Judicial District of Southern California. It provides, inter alia, for the safekeeping, care and subsistence of prisoners in the Los Angeles County Jail, Los Angeles, the care to be provided by the County Jail to 'include medical, dental and surgical treatment and hospitalization, except for inmates needing hospitalization in Los Angeles County General Hospital.' The contract was made subject to the provisions of Title 18 of the United States Code Annotated, and to 'the rules and regulations' specified in Exhibit A which was attached to the contract. (These rules and regulations had been promulgated by the United States Department of Justice, and their validity is not assailed on this appeal.)\n The aforesaid rules and regulations provided, inter alia, that 'it is the responsibility of the Sheriff, Jailer, or other official responsible for the administration of the institution (here the Los Angeles County Jail) to keep the prisoners in safe custody * * *.' The contract named the Los Angeles County Hospital as the place where 'care' (at the expense of theBureau of prisons) would be provided where medical, dental or surgical treatment and hospitalization was needed or required for a federal prisoner. Provisions were made in the rules and regulations for emergency treatment in the said County Hospital without prior authorization, but the United States Marshal was required to be notified of the conditions calling for emergency treatment. (No issue is presented on this appeal as to the necessity for emergency treatment in appellant's illness.)\n \n \n 2\n As we noted in the body of the opinion, appellant concedes in his motion for a judgment of acquittal that perhaps if a deputy sheriff had asked a nurse to watch him during his 'emergency hospital treatment,' such a 'watch' by a nurse might have been sufficient 'custody' to satisfy the requirements of the contract with Los Angeles County\n \n \n 3\n Somewhat similar instructions on the issue of 'custody' at the time appellant leaped from the hospital stretcher and broke away from the hospital orderly, were given to the jury in the instant case. Under these instructions, and by its verdict, the jury rejected appellant's theory that he was not in 'custody' of the Attorney General at the time and place here mentioned\n We think that on this controlling factual issue the (here unchallenged) instructions were eminently fair to appellant.\n \n \n 4\n Title 18 U.S.C.A. Section 4002, in pertinent part, reads as follows: 'For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under the authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.' The authority given the Director of the Bureau of Prisons under the language of the foregoing statutory provision, underlies the contract with Los Angeles County with which we are here concerned\n Title 18 U.S.C.A. Section 4042 provides, in pertinent part, that 'The Bureau of Prisons, under the direction of the Attorney General, shall * * * (2) provide * * * for the safekeeping, care, and subsistence of all persons * * * convicted of offenses against the United States, or held as witnesses, or otherwise'.\n Title 18 U.S.C.A. Sections 4002 and 4042(2) clearly show that the Bureau of Prisons is the actual contracting agency of the Department of Justice for all matters pertaining to the care and custody of federal prisoners on behalf of the Attorney General.\n As bearing on the issues in the instant case, the following cases are of interest.\n In Williams v. Steele, 8 Cir., 194 F.2d 32, 34, the lower court's judgment there considered, was based on 18 U.S.C.A. Section 4042. A question before the Circuit Court in this habeas corpus case was whether Section 4042, supra, entrusting the supervision of discipline in federal prisons under the direction of the Attorney General, is exclusive. The opinion, following the overwhelming weight of authority, held that such authority was exclusive. The Circuit Court expressly held that 'since the prison system of the United States is entrusted to the Bureau of Prisons under the direction of the Attorney General, 18 U.S.C.A. 4042, supra, the courts have no power to supervise the discipline of the prisoners nor to interfere with their discipline, but only on habeas corpus to deliver from prison those who are illegally detained. (Citing cases.)' A petition for rehearing was denied 8 Cir., 194 F.2d 917, and certiorari was denied 344 U.S. 822, 73 S.Ct. 20, 97 L.Ed. 640.\n The conclusion reached in Henson v. Welch, 4 Cir., 199 F.2d 367, is in full accord with the holding in Williams v. Steele, supra. In the Henson decision the court repeated and adopted the statement of law concerning the exclusive supervisory function of the Federal Bureau of Prisons which we quoted in the foregoing comment on the Williams' decision.\n \n \n ", "ocr": false, "opinion_id": 244106 }, { "author_str": "Bone", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBONE, Circuit Judge. .\nAppellant was indicted, tried before a jury and convicted for a violation of Section 751 of Title 18 U.S.C.A. Section 751 reads as follows:\n“Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not *795more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than SI,000 or imprisoned not more than one year, or both. June 25, 1948, c. 645, 62 Stat. 734.”\nThe gravamen of the charge laid in the indictment is that appellant “who was then and there in the custody of the Attorney General of the United States and his authorized representative by reason of the defendant’s conviction in the United States District Court of an offense, namely: bank robbery, a felony, did escape and attempt to escape from such custody.” The offense in question is charged to have occurred on or about November 5, 1956 in Los Angeles County, California.\nAppellant had been taken to Los Angeles, California. At the time of the events here narrated, he was (according to his brief) serving a term, of 25 years imprisonment in Alcatraz penitentiary on his conviction of armed robbery, having been committed to that federal penal institution on or about May 20, 1953. His removal to Los Angeles was to secure his testimony in a matter then pending m the United States District Court for the Southern District of California, and his removal was effected under a writ of habeas corpus ad testificandum, the validity and regularity of which are not questioned on this appeal.\nThe evidence at trial is before us in a lengthy record provided at government expense. The evidence introduced by the government established, or tended to establish, the following facts.\nWhile being held in Los Angeles, appellant was detained in the Los Angeles County Jail. Los Angeles County had a then unexpired and still effective contract with the United States Bureau of Prisons to detain and care for federal prisoners in its County Jail while (as in this case) such, a prisoner is being held in Los Angeles.1\nThis contract had been executed by the United States Department of Justice through its Bureau of Prisons (which is a part of the United States Department of Justice) and had been approved by the United States Marshal for the Southern District of California. It had also been adopted by the Board of Supervisors for the County of Los Angeles. Facts in evidence at trial also established that the United States Marshal’s Office for the *796Southern District of California operates within the United States Department of Justice under the direction and supervision of the Attorney General of the United States.\nThe evidence also shows that under the said contract, and while acting under such direction and supervision, the said United States Marshal placed appellant in the Los Angeles County Jail. The above mentioned contract, and the attached regulations (see footnote 1) do not provide or require that the United States Marshal or his deputies should be stationed in the County Jail to there personally oversee every or any aspect of appellant’s detention since the jail was operated under supervision of the Sheriff of Los Angeles County. Under the contract and attached regulations, it was the responsibility of the said Sheriff to “keep the prisoner in safe custody.” And, as indicated in footnote 1, the said contract (and attached regulations) with Los Angeles County provides for medical care.\nWhile being held in the Los Angeles County Jail, appellant complained of and suffered from a painful physical ailment and made several visits to the so-called “Jail Hospital” located in the jail itself, Because of the apparently serious character of appellant’s physical trouble, the jail doctor directed that appellant be sent to the Los Angeles County General Hospital for further study in regard to possible prostatitus or uretal calculus. This procedure was in accord with the terms of the contract. (In this connection the evidence shows that the Los Angeles County \"Jail Hospital” could provide only minor medical attention for jail inmates.) Based upon this advice and directive from the jail doctor, appellant was taken by Los Angeles County Deputy Sheriffs to the Los Angeles County General Hospital on November 4, 1956, for an examination. (He had also been taken to this hospital on previous occasions for a physical examination.)\nEvidence established that while the Los Angeles County Jail was under the general control of the County Sheriff, one of his deputies was charged with the supervision of personnel and of the operation of this jail.\nFacts in evidence show that when (as here) it is necessary that a federal prisoner held in the County Jail be removed to the Los Angeles County General Hospital for examination and/or treatment, such a prisoner is there lodged in what is designated as the “Los Angeles County Jail Unit” in the said hospital. This “unit” was and is a place of imprisonment in the hospital, that is to say, a “lock-up” or “prison ward” in an area on the 13th floor of the hospital building. Like the regular county jail this “unit” has sleeping facilities but apparently is not equipped with such highly technical facilities as x-ray equipment.\nThe evidence also established that the Los Angeles County Board of Supervisors had, by formal ordinance, designated that a portion of the Los Angeles County Hospital “is considered a portion of the Los Angeles County Jail.” The “portion” on the 13th floor, so made a Los Angeles County Jail Unit by ordinance, is the County Jail facility provided for federal prisoners just above mentioned.\nThe evidence in this case establishes beyond a shadow of doubt that appellant not only claimed that he was, but actually was, for several days, plagued by certain symptoms which clearly indicated that he might be, or probably was, suffering from a dangerous physical ailment. It was this serious condition that caused his removal to the County General Hospital so that he would be in an institution where facilities for proper emergency medical and x-ray examination were available and close at hand. In the absence of the technical service there available appellant might have died or suffered irreparable harm.\nOn the morning of November 5, 1956, while appellant was in bed in the “Jail Unit” of the Los Angeles County General Hospital, he was given certain preliminary medication to prepare him for a required x-ray examination in the “Cystoscopic Clinic” of the hospital which was *797located on the 4th floor. For this purpose it was necessary to take appellant to said “clinic” where an examination would or might reveal the exact nature of his physical disorder. To remove him to this “clinic,” a county-employed hospital orderly placed him on a conventional hospital “stretcher.” He was then wearing an ordinary hospital gown and his trousers. The orderly had been assigned for duty in the “Jail Unit” or portion of the hospital.\nThe orderly “wheeled” the stretcher over to an elevator door located just in front of the “Jail Unit” where a deputy sheriff of Los Angeles County handcuffed him. The stretcher was then rolled into the elevator by the orderly and the elevator lowered to the “clinic” (4th) floor. Later on that floor, and while the stretcher was being pushed down a hall toward the “clinic” door, appellant abruptly jumped from the stretcher and ran down a nearby hallway toward a stairway. The orderly gave chase, grabbed appellant, and a scuffle ensued between the two men on the stairway. Appellant forcibly broke away from the orderly and from all other pursuers and finally managed to run out of the hospital building into the street. He there took possession of a nearby car in which the owner had left ignition keys, and drove off. He was later captured by state officers on the same day a few miles south of Bakersfield, California, while driving north in the stolen car. When seized by these state officers he was still wearing his handcuffs.\nAppellant’s Contentions\nAppellant raises no question here concerning the validity of his “custody” in the County Jail or while in the County “Jail Unit” in the hospital. Nor does he object to the rulings of the trial court on questions of admissibility of evidence at trial, or any of the court’s instructions to the jury. He assures us that his sole ground for appeal is that there was insufficient evidence to prove beyond a reasonable doubt that, at the time of the alleged escape (on the 4th floor) he was “in the custody of the Attorney General of the United States or his authorized representative.”\nIn support of this single contention, his argument is two-pronged: The facts in evidence do not (1) sufficiently prove that the Attorney General authorized the Sheriff of Los Angeles County to have custody of appellant, and (2) there was no proof that the Assistant Director of the Bureau of Prisons was authorized by the Attorney General of the United States to enter into contracts with state or local agencies pertaining to the care and custody of prisoners. For reasons later noted, we reject argument (1) as wholly without merit. The contract itself is a sufficient refutation of this particular argument.\nWhen the Government rested its prima facie case, appellant’s counsel moved for a “dismissal.” We assume that he was, by this form of motion, seeking a directed verdict of acquittal. In presenting argument on the motion, counsel urged (1) that appellant was not “in custody” at the time he left the Los Angeles County General Hospital, this for the reason that the testimony shows that “this is only a designated portion of the hospital, which is the County Jail, which is the 13th floor,” and (2) “appellant was not in [such] jail at the time, that he was not in the custody of an authorized representative of the United States Marshal * * * he was in the custody of an orderly of the hospital, who was not an authorized representative of the Marshal,” and (3) that “the authority of the Los Angeles County Sheriff to handle prisoners for the United States Marshal is a delegated power and he can’t delegate that power to a third person or to a third entity.” (Emphasis supplied.) We assume that the reference to a “third person” or “third entity” is a reference to the hospital and to the “orderly.”\nIn answer to a question by the court, appellant’s counsel agreed that the Attorney General could delegate the power (of custody) to a non-federal agency such as the Sheriff of Los Angeles County, but that the Sheriff could not *798\"turn around and delegate that power; ” that (appellant’s) counsel did not want prisoners having kidney stones operated on by sheriffs, but “you might take them over to a deputized office (sic) and teU the nurse to watch them.” 2 (Emphasis supplied.)\nThe court denied appellant’s here noted motion.\nSubsequently, and at the end of all of the evidence, counsel for appellant again moved for a judgment of acquittal “on the same grounds,” i. e., that the defendant “was not in custody” of the Attorney •General at the moment he broke away from the clutches of the hospital orderly and ran out of the hospital.\nThe substance of appellant’s argument is that the evidence shows (1) that during the period when he was being removed by an orderly from the 13th floor hospital “Jail Ward” to the “clinic” on the 4th floor, he was not accompanied by a Deputy Sheriff of Los Angeles County (or not being “watched” by a nurse), and (2) this fact indicates that the Attorney General of the United States somehow lost and/or abandoned “custody” of him as soon as he was removed from the 13th floor “Jail Ward” on the stretcher. This ■ contention is advanced even though he-was then handcuffed and wearing a hospital gown. It is the basis of his claim that the indictment charge lacks support in the evidence.\nAppellant’s theory of loss or abandonment of “custody” is untenable. In Giles v. United States, 9 Cir., 157 F.2d 588, certiorari denied 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 this Court was confronted with a problem of “custody” which in principle closely parallels that posed in the instant case. Giles was a prisoner in the federal prison on Alcatraz Island. He was working with other prison inmates on a dock on the Island located about % of a mile from the prison proper. He somehow managed to secrete himself on an Army vessel then “docked” at the Island and was later taken from the vessel and returned to the prison. He was indicted, tried and convicted for attempting to escape from the custody of the Attorney General.\nGiles argued to us that he was not in actual custody of anyone while away from the prison house and while going about the chores assigned to him on this dock, therefore he could not be deemed to have attempted to escape from custody of the Attorney General. The specific reason advanced to sustain this argument was that he was not at cdl times under the observation of one or the other of the regular Alcatraz prison guards.\nIn disposing of this argument, this Court held that it was without force— that the statutory term “custody” as applied to the situation of appellant, is not so narrow and restricted — that appellant likens the case to one where the custodian of a prisoner purposely abandons Ms charge, leaving Mm free to go his own way. We pointed out that there was no abandonment of custody in this instance, and that the question of custody was submitted to the jury as one of fact in an instruction stating that, in order to convict, the evidence must show beyond a reasonable doubt that Giles was actually in custody at the beginning of the alleged attempt to escape.2\n3\nIn commenting on arguments of counsel in the Giles case, we pointed out that *799“it was not in the circumstances of this case essential to custody that the guard follow the prisoner around and keep him every moment under observation.” So much can be said concerning appellant’s contentions in the instant case that it was necessary that a Deputy Sheriff of Los Angeles County be in constant watch over him (or at least a nurse be watching him) during his floor-to-floor trip to the hospital “clinic.”\nFurther reiterating the foregoing argument, appellant urges that “it certainly was not in the contemplation of the parties to the contract that a convicted armed robber, sentenced to a term of twenty-five years in a maximum security prison should be allowed in the civilian portion of a large hospital not accompanied by a guard.” (Emphasis supplied.) The rationale of the Giles decision (so far as regards “custody”) calls for outright rejection and repudiation of the theory that (acting under the provisions of the contract) a prompt and commendable effort of jail authorities to meet a dangerous threat to a prisoner’s, health by providing necessary emergency treatment in the here hospital clinic (which might save his life) can be tortured into a legal and/or wilful “abandonment of custody” over him. An argument based on this theory is so outlandish as to be void of a semblance of merit or common sense. It is not the policy of the Federal Government to let prisoners die for want of available medical attention.\nAppellant’s final argument is that there was no proof that the Assistant Director of the Bureau of Prisons was authorized by the Attorney General to enter into contracts like the here involved contract with Los Angeles. County.\nThis contract was a public official document and speaks for itself. It reveals, on its face that it was signed by the Assistant Director of the Bureau of Prisons “By direction of the Director of the. Bureau of Prisons.” 4 So far as the evi*800dence shows, the Bureau of Prisons was operating under, and recognizing, the contract at all times here pertinent, and was paying to Los Angeles County all amounts due that county for appellant’s “keep” in the Jail and the amounts due for the treatment given him in the hospital “clinic.” Furthermore, the record shows that appellant offered no objection when the contract was placed in evidence, and no instruction was requested concerning its validity or the mode and manner of its execution. Nor was the obvious fact that the Bureau of Prisons and Los Angeles County were, at all times here pertinent, recognizing and operating under the provisions of this contract, brought into question at trial.\nThe rule has been expressed that the authority to execute such a contract cannot be challenged on appeal if there was a failure to object to its introduction and use as evidence at trial; that such a failure to object constitutes a waiver of the right to object, and admits, among other things, the authority of the person executing the contract.\nIn Collins v. Streitz, 95 F.2d 430, 436, this Court quoted with approval from Wigmore on Evidence (2nd Edition, section 2132) where the following principle is stated:\n“When the opponent fails to object to the admission of the [executed] document, this is, of course, on general principles * * * a waiver as to the need of any evidence authenticating its genuineness ; that this waiver is commonly held to extend to the fact of authority of an agent purporting to sign the document for a principal, but not as to the legal sufficiency of the instrument for any purpose.”\nIn footnote 7 to our Collins opinion, Judge Stephens cites (among other apposite cases) two criminal cases from this Circuit, Wells v. United States, 257 F. 605; Hart v. United States, 11 F.2d 499, certiorari denied, 273 U.S. 694, 47 S.Ct. 92, 71 L.Ed. 844, supporting the doctrine that “In the federal courts no error can be predicated on the admission of evidence unless the objection thereto is specific.”\nThe challenge to the authority of the Director of the Bureau of Prisons to direct the contract to be executed by his deputy, the Assistant Director of the Bureau of Prisons, is rejected. The verdict of the jury was just and proper, and the judgment of the lower court thereon should be and is affirmed.\n\n. This contract was dated July 1, 1955, and was, by its terms, effective for a period not to exceed three years from that date. The evo,nts with which we are here concerned all occurred within the effective period of the contract which was entered into between the United States Department of Justice through its Bureau of Prisons, and the County of Los Angeles located in the Federal Judicial District of Southern California. It provides, inter alia, for the safekeeping, care and subsistence of prisoners in the Los Angeles County Jail, Los Angeles, the care to be provided by the County Jail to “include medical, dental and surgical treatment and hospitalization, except for inmates needing hospitalization in Los Angeles County General Hospital.” The contract was made subject to the provisions of Title 18 of the United States Code Annotated, and to “the rules and regulations” specified in Exhibit A which was attached to the contract. (These roles and regulations had been promulgated by the United States Department of Justice, and their validity is not assailed on this appeal.)\nThe aforesaid rules and regulations provided, inter alia, that “it is the responsibility of the Sheriff, jailer, or other official responsible for the administration of the institution [here the Los Angelos County Jail] to keep the prisoners in safe custody * * The contract named the Los Angeles County Hospital as the place where “care” (at the expense of the Bureau of prisons) would be provided where medical, dental or surgical treatment and hospitalization was needed or required for a federal prisoner. Provisions were made in the rules and regulations for emergency treatment in the said County Hospital without prior authorization, but the United States Marshal was required to be notified of the conditions calling for emergency treatment. (No issue is presented on this appeal as to the necessity for emergency treatment in appellant’s illness.)\n\n\n. As we noted in the body of the opinion, appellant concedes in his motion for a judgment of acquittal that perhaps if a deputy sheriff had asked a nurse to watch him during his “emergency hospital treatment,” such a “watch” by a nurse might have been sufficient “custody” to satisfy the requirements of the contract with Los Angeles County.\n\n\n, Somewhat similar instructions on the issue of “custody” at the time appellant leaped from the hospital stretcher and broke away from the hospital orderly, were given to the jury in the instant case. Under these instructions, and by its verdict, the jury rejected appellant’s theory that he was not in “custody” of the Attorney General at the time and place here mentioned.\nWe think that on this controlling factual issue the (here unchallenged) instructions were eminently fair to appelant.\n\n\n. Title 18 U.S.C.A. Section 4002, in pertinent part, reads as follows: “For llie purpose of providing suitable quarters for the safekeeping, care, and subsistence of all persons held under the authority of any enactment of Congress, the Director of the Bureau of Prisons may contract, for a period not exceeding three years, with the proper authorities of any State, Territory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper employment of such persons.” The authority given the Director of the Bureau of Prisons under the language of the foregoing statutory provision, underlies the contract with Dos Angeles County with which we are here concerned.\nTitle 18 U.S.C.A. Section 4042 provides, in pertinent part, that “The Bureau of Prisons, under the direction of the Attorney General, shall * * * (2) provide * * * for the safekeeping, care, and subsistence of all persons * * * eonvieted of offenses against the United States, or held as witnesses, or otherwise”; (Emphasis supplied.)\nTitle 18 U.S.C.A. Sections 4002 and 4012(2) clearly show that the Bureau of Prisons is the actual contracting agency of the Department of Justice for all matters pertaining to the care and custody of federal prisoners on behalf of the Attorney General.\nAs bearing on the issues in the instant case, the following cases are ol' interest.\nIn Williams v. Steele, 8 Cir., 194 F.2d 32, 34, the lower court’s judgment there considered, was based on 18 U.S.C.A. Section 4042. A question before the Circuit Court in this habeas corpus case was whether Section 4042, supra, entrusting the supervision of discipline in federal prisons under the direction of the Attorney General, is exclusive. The opinion, following the overwhelming weight of authority, held that such authority was exclusive. The Circuit Court expressly held that “since the prison sys,tem of the United States is entrusted to. the Bureau of Prisons under the direction of the Attorney General, 18 U.S.C.A. § 4042, supra, the courts have no power to supervise the discipline of the prisoners nor to interfere with their discipline, but only on habeas corpus to deliver from prison those who are illegally detained. (Citing cases.)” A petition for rehearing was denied 8 Cir., 194 F.2d 917, and certiorari was denied 344 U.S. 822, 73 S.Ct. 20, 97 L.Ed. 640.\nThe conclusion reached in Henson v. Welch, 4 Cir., 199 F.2d 367, is in full accord with the holding in Williams v. *800Steele, supra. In the Henson decision the court repeated and adopted the statement of law concerning the exclusive supervisory function of the Federal Bureau of Prisons which we quoted in the foregoing comment on the Williams’ decision.\n\n", "ocr": false, "opinion_id": 9446004 }, { "author_str": "Chambers", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCHAMBERS, Circuit Judge,\n(concurring) .\nIn all of the foregoing opinion, I concur. However, I think the fourth alternative under Section 751 (See 18 U.S.C.A. § 751) —“ * * * from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner * * * ” — would have been a sufficient basis for an indictment, rather than the harder ground chosen by the district attorney. It is not the case before us, but assuming there had been no contract with Los Angeles County to hold prisoners for the United States Bureau of Prisons, I am satisfied there would still have been a violation by Tucker of the statute when he took his own leave. I am sure that Judge Bone does not mean to imply that “custody of the Attorney General or his authorized representative” is a necessary prerequisite to a violation, but lest someone think the indictment form here is always required, I add this dictum.\n", "ocr": false, "opinion_id": 9446005 } ]

[ "575 P.2d 1276", "118 Ariz. 250" ]

[ { "author_str": "Richmond", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6238, "opinion_text": "\n118 Ariz. 250 (1978)\n575 P.2d 1276\nThe STATE of Arizona, Appellee,\nv.\nJuan Jesus MOLINA, Appellant.\nNo. 2 CA-CR 1121.\nCourt of Appeals of Arizona, Division 2.\nJanuary 12, 1978.\nRehearing Denied February 14, 1978.\nReview Denied March 7, 1978.\nBruce E. Babbitt, Atty. Gen. by William J. Schafer III, and Diane DeBrosse Hienton, Asst. Attys. Gen., Phoenix, for appellee.\nJohn M. Neis, Pima County Public Defender by Frederic J. Dardis, Asst. Public Defender, Tucson, for appellant.\nOPINION\nRICHMOND, Chief Judge.\nAppellant, sentenced to concurrent sentences of not less than five nor more than *251 six years in the state prison for (1) possession of heroin for sale and (2) unlawful sale of heroin, attacks the constitutionality of subsections (A) and (D) of A.R.S. § 36-1002.01 and A.R.S. § 36-1002.02. He claims that these statutory provisions, which mandate service of a five-year prison term, constitute an unconstitutional invasion of the powers of the executive as well as judicial branch of the government.\nWe have previously rejected a claim that mandatory prison sentences are an unconstitutional usurpation of judicial power. See State v. Williams, 115 Ariz. 288, 564 P.2d 1255 (App. 1977). Nor do we find an invasion of the executive domain because of non-eligibility for parole until the minimum sentence is served. The Arizona Constitution, Art. 5, § 5, gives the Governor power to grant reprieves, commutation, and pardons, with certain exceptions. The constitution does not speak of parole and therefore parole is within the legislative scope of establishing suitable punishment for the various crimes. See Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975).\nWhether mandatory prison sentences are not appropriate in every situation is a question for the law-making body, not the courts.\nAffirmed.\nHOWARD and HATHAWAY, JJ., concur.\n", "ocr": false, "opinion_id": 1206479 } ]

[ "688 F.2d 664" ]

[ { "author_str": "Price", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/688/688.F2d.664.82-5046.html", "author_id": null, "opinion_text": "688 F.2d 664\n Patricia LANGAGER and Leroy Langager, husband and wife,Plaintiffs-Appellants,v.LAKE HAVASU COMMUNITY HOSPITAL, et al., Defendants-Appellees.\n No. 82-5046.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted July 8, 1982.Decided Sept. 22, 1982.\n \n 1\n Gary Engle, Sternberg, Sternberg, Rubin & Schleier, Phoenix, Ariz., argued, for plaintiffs-appellants; Tod F. Schleier, Phoenix, Ariz., on brief.\n \n \n 2\n Timothy Berg, Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz., argued, for defendants-appellees; Paul J. Mooney, Phoenix, Ariz., on brief.\n \n \n 3\n On Appeal from the United States District Court for the District of Arizona.\n \n \n 4\n Before GOODWIN and NELSON, Circuit Judges, and PRICE,* District Judge.\n \n PRICE, District Judge:\n \n 5\n Plaintiffs appeal from a summary judgment for the defendants. The district court granted defendants' motion on the grounds that because plaintiffs' claims were barred by the statute of limitations, there remains no genuine issue of material fact to be litigated.\n \n FACTS\n \n 6\n Mrs. Langager was admitted as a patient to the defendant hospital on October 22, 1976 for purposes of childbirth. She was under the care and treatment of a Dr. Nelson. While in the hospital, she suffered a stroke which plaintiffs allege was proximately caused by the defendants' negligence.\n \n \n 7\n On July 12, 1978, plaintiffs filed an action in Arizona state court against the treating physician, Dr. Nelson, and the consulting physician, Dr. Dreeve. That case has been tried and a state court jury returned a verdict in favor of Dr. Nelson.\n \n \n 8\n On October 23, 1978, during the discovery procedures being pursued in the state court action, the plaintiffs allege that they learned for the first time that the medical records of Mrs. Langager had been altered by employees of the defendant hospital. This alteration forms the basis of their district court action filed on July 1, 1981.1\n \n \n 9\n Although neither the order nor the judgment in the district court elaborates the basis for the trial court's determination, both the briefing below, as well as here, and the oral argument indicate that the only issue presented to the trial court for determination was whether Arizona Revised Statutes (hereinafter ARS), § 12-564 barred plaintiffs' cause of action.2 That section, in pertinent part, reads as follows:\n \n \n 10\n A. A cause of action for medical malpractice against a licensed health care provider accrues as of the date of the injury and shall be commenced and prosecuted within three years after the date of injury. In no event shall the time for commencement of legal action exceed three years from the date of injury except as provided in subsections B, C and D.\n \n \n 11\n B. In an action based on injury through the leaving of a foreign object having no therapeutic, diagnostic or other medical reason for remaining in the patient's body, the period of limitations shall be tolled until the discovery of the foreign object or when the foreign object, which the exercise of reasonable diligence, should have been discovered, whichever occurs first.\n \n \n 12\n C. In an action where a defendant or an agent of a defendant has intentionally prevented the discovery of an injury caused by that defendant by concealing or misrepresenting facts about the injury, the period of limitations shall be tolled from the date of the injury until the discovery of the injury or the time when, with the exercise of reasonable diligence, it should have been discovered, whichever occurs first.3\n \n \n 13\n This is an appeal from the court order granting the motion for summary judgment:\n \n \n 14\n This matter having been under advisement, IT IS ORDERED granting Defendants' Motion for Summary Judgment.\n \n \n 15\n Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1300 (9th Cir. 1981), reads as follows:\n \n \n 16\n We may affirm a summary judgment only if it appears from the record, after viewing all evidence and factual inferences in the light most favorable to the appellant, that there are no genuine issues of material fact, and the appellee is entitled to prevail as a matter of law.\n \n \n 17\n It is the plaintiffs' position that despite the use of the word \"injury,\" the statute must be read in the traditional sense, i.e., that the cause of action for medical malpractice accrues as of the date of the legal injury. The legal injury here was intentionally concealed, they continue, and hence subsection C of § 12-564 tolled the running of the basic three-year statute.4\n \n \n 18\n Not so, said the defendants. The latest revision by the Arizona legislature of the medical malpractice statute of limitations, clearly states that the statute runs from the date of physical injury; the concealment or misrepresentation must go to the fact of the plaintiff's injury, not the cause of the plaintiff's injury.\n \n THE LAW\n \n 19\n Both the Arizona legislature and the Arizona court have had a long struggle with the problem of what facts or circumstances toll the statute of limitations in malpractice actions against medical providers.\n \n \n 20\n Starting with Morrison v. Acton, 68 Ariz. 27, 198 P.2d 590 (1948), the Arizona courts had consistently held that the health provider's failure to fully and frankly disclose to the patient the true facts leading to the plaintiff's alleged injury amounted to fraudulent concealment, and constituted legal or constructive fraud. Such action, they concluded, tolled the applicable statute of limitations until the plaintiff discovered or was put on reasonable notice of the breach of trust. It is of importance to note that the Morrison court clearly held that the constructive fraud of the health provider tolled the statute of limitations for personal injury actions; it did not hold the action was governed by the statutes of limitations applicable to actions for fraud.\n \n \n 21\n The viability of Morrison, supra, was affirmed recently in Sato v. VanDenburgh, 123 Ariz. 225, 599 P.2d 181 (1979), in a case involving a claim for damages resulting from the negligent performance of professional services rendered by an accountant.\n \n \n 22\n In Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971), the Arizona court of appeals was faced with interpreting the predecessor to the present statute of limitations, namely, ARS § 12-542(1). That statute reads as follows:\n \n \n 23\n There shall be commenced and prosecuted within two years after the cause of action accrues, and not afterwards, the following actions:\n \n \n 24\n (1) For injuries done to the person of another ....\n \n \n 25\n After an exhaustive review of the applicable appellate cases of the several states, the court held that under the Arizona statute as interpreted by prior appellate cases, the cause of action in a medical malpractice case accrues at the time the plaintiff knew, or in exercising reasonable diligence should have known, of the defendant's allegedly negligent conduct.\n \n In doing so, the court did observe that:\n \n 26\n However, the doctrine that fraudulent concealment of a cause of action either tolls the statute or prevents its running, is of judicial origin, not legislative. Acton v. Morrison, supra. The rule that unknown trespass should be treated as constructive fraud to keep the statute of limitations from running is a judicial rule, not legislative. (citations omitted)\n \n \n 27\n We have attempted here to ascertain the legislature's intent, rather than establish a new statute of limitations by judicial legislation. If the legislature concludes that our determination of their intention be incorrect, or if correct, desires to place outside limitations on actions such as this, it is more than appropriate that they should do so.\n \n \n 28\n Mayer v. Good Samaritan Hospital, supra, at 501-502.\n \n \n 29\n The Arizona Supreme Court denied a petition for review in Mayer on April 27, 1971.\n \n \n 30\n In Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976), the Arizona appellate courts dealt with yet another predecessor to the statute we consider, ARS § 12-542(B).5\n \n \n 31\n In Landgraff, supra, plaintiff did not discover a steel surgical clamp for nearly nine years after the event. She filed suit within two years of discovery. The trial court found the action to be barred by ARS § 12-542(B), supra.\n \n \n 32\n Appellant Landgraff attacked the trial court's order granting summary judgment on two grounds.\n \n \n 33\n First, that ARS § 12-542(B) was unconstitutional in that it had the potential to bar a claimant from bringing an action for injury which was discovered during the applicable periods. The Arizona court of appeals rejected this contention stating that:\n \n \n 34\n We find the statute of limitations under review here to be a reasonable legislative restriction upon the right of action even in view of its seemingly unfair effect upon a claimant who was unaware of the claim.\n \n \n 35\n Landgraff v. Wagner, supra, at 31.\n \n \n 36\n The court also held the statute in question did not offend plaintiff's due process or equal protection rights.6\n \n \n 37\n Plaintiff, however, prevailed on her second ground of appeal, namely, that there remained to be litigated issues of fact. The court of appeals then stated as follows:\n \n \n 38\n The first is whether the period of limitation was tolled because either one or all of the appellees failed to disclose the claimed negligent act when they either knew or should have known of it. The second is whether appellant knew or should have known of the presence of the surgical clamp.\n \n \n 39\n Landgraff v. Wagner, supra, at 33.\n \n \n 40\n Accordingly, the summary judgment was reversed. In doing so, the court of appeals noted that the issue of whether a statute of limitation is tolled is always a question of fact to be determined by the trier of fact. The Arizona Supreme Court denied review in Landgraff on March 30, 1976.\n \n \n 41\n It should be noted that the decision in Landgraff, supra, became final after ARS § 12-564 became effective,7 and it was not before the court for consideration. We further note, however, that the original opinion in Landgraff was issued before the effective date of ARS § 12-564.8\n \n \n 42\n We believe, however, that the principles enunciated by Landgraff are dispositive of the instant case. The statute being considered by the Landgraff court contained the following clause: \"These time limitations shall be tolled for any period during which such person9 has failed to disclose any act, error or omission upon which such action is based and which through the use of reasonable diligence should have been known to him.\" (ARS § 12-542(B) ).\n \n \n 43\n Subsection (C) of ARS § 12-564 provides: \"In an action where a defendant or agent of a defendant has intentionally prevented the discovery of an injury caused by that defendant by concealing or misrepresenting facts about the injury,\" the three-year statute of limitations provided for in ARS § 12-564(A) is tolled.\n \n \n 44\n As was the case in Landgraff, plaintiffs' complaint here contains allegations which present an issue of fact as to whether the defendant or its agents committed acts proscribed by ARS § 12-564(C), thus tolling the three year statutory period. The adoption, by the Arizona legislature of a tolling provision so similar to that considered in Landgraff, must be taken as an affirmation by the legislature of the long-standing judicial rules enunciated in the cases previously discussed.\n \n \n 45\n The foregoing being dispositive of the case, we do not reach the other issues raised by the appellants. The summary judgment is reversed as to Lake Havasu Community Hospital.\n \n \n 46\n At oral argument, appellants' counsel conceded that the summary judgment should be affirmed as to appellee Mary L. Duncan. Accordingly, judgment dismissing the action as to her is affirmed.\n \n \n \n *\n Honorable Edward Dean Price, United States District Judge for the Eastern District of California, sitting by designation\n \n \n 1\n Plaintiffs' complaint contains the following allegations:\n That the conduct of Defendant Lake Havasu Community Hospital, by and through its agents, representatives, and employees, constituted negligence and carelessness in regard to the care and treatment rendered Plaintiff Patricia Langager, as follows:\n (A) In failing to take vital signs while Plaintiff Patricia Langager was in labor, delivering her baby, and subsequent to the birth of said child.\n (B) In administering the drug Methergine and/or Pitocin to Plaintiff Patricia Langager.\n (C) In failing to advise Dr. Nelson of Plaintiff Patricia Langager's vital signs during labor, delivery, and subsequent to the birth of her child.\n (D) In failing to record vital signs while Plaintiff Patricia Langager was in labor, delivering her baby, and subsequent to the birth of said child.\n (E) In failing to have adequate, competent, and sufficient staff present to assist during the labor and delivery of Plaintiff Patricia Langager's child.\n (F) In failing to follow the procedures, rules and regulations of Defendant Lake Havasu Community Hospital in regard to (A), (D) and (E) above.\n \n \n 2\n Defendant's motion for summary judgment must be gleaned from the defendant's moving papers rather than the trial court's order and judgment granting same\n In their motion for summary judgment, the defendants' counsel stated:\n Pursuant to Rule 56(b), Federal Rules of Civil Procedure, defendants move for summary judgment in their favor against plaintiffs, on the grounds that there is no genuine issue as to any material fact and defendants are entitled to judgment in their favor as a matter of law.\n In the introduction to their Points and Authorities, defendants' counsel continues:\n The statute of limitations for medical malpractice actions in Arizona is three years. A.R.S. § 12-564(A). The alleged acts of malpractice on the part of these named defendants occurred on October 22 and 23, 1976, while plaintiff Patricia Langager was a patient at Lake Havasu Community Hospital. Since more than three years have elapsed from the date of Mrs. Langager's injury, plaintiffs have alleged that the statute of limitations was tolled because of Vicki Zimmer's completion of her nurse's notes in Mrs. Langager's hospital record some five months after Mrs. Langager was discharged from the hospital. Apparently, the basis for this claim is the tolling provision contained in A.R.S. § 12-564(C). As the following discussion amply demonstrates, plaintiffs' reliance on this statute is misplaced and defendants are entitled to judgment in their favor as a matter of law.\n \n \n 3\n Jurisdiction of the district court was based exclusively on diversity of citizenship. The action arose solely within the State of Arizona. Accordingly, Arizona statutes of limitations are applicable\n \n \n 4\n The issue of the sufficiency of plaintiffs' pleadings to state a cause of action is not before us. The sole issue is the legal effect of ARS § 12-564, considered in light of the admitted concealment and alteration of the hospital records of Mrs. Langager by personnel of the defendant hospital\n \n \n 5\n A cause of action for injury or death against a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopath, chiropractor, licensed clinical laboratory director, naturopath, or a licensed hospital as the employer of any such person, based upon such person's alleged professional negligence, or for rendering professional services without consent, or for error or omission in such person's practice, shall accrue as of the date of injury and shall be commenced and prosecuted within six years after the date of injury or two years after the injured party discovers or through the use of reasonable diligence should have discovered the malpractice, whichever period first occurs. These time limitations shall be tolled for any period during which such person has failed to disclose any act, error or omission upon which such action is based and which through the use of reasonable diligence should have been known to him. (Ariz. Rev. Stat. § 12-542(B) )\n \n \n 6\n These challenges were made under applicable provisions of both the Federal and Arizona state constitutions\n \n \n 7\n Counsel conceded at oral argument that ARS § 12-564, in whole or in part, has yet to be construed by an Arizona appellate court. Had it been so interpreted, we would be compelled to follow that construction\n \n \n 8\n We have no relevant legislative history to indicate what information the Arizona legislature used in formulating ARS § 12-564(A) in its present form. Neither do we find any appellate decisions by an Arizona court construing the portion of the section we now consider\n \n \n 9\n The persons referred to in this clause are \"a physician or surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopath, chiropractor, licensed clinical laboratory director, naturopath or a licensed hospital as the employer of any such person.\" See ARS § 12-542(B)\n \n \n ", "ocr": false, "opinion_id": 408235 } ]

[ "797 P.2d 848" ]

[ { "author_str": "Hume", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6673, "opinion_text": "\n797 P.2d 848 (1990)\nIn re the MARRIAGE OF Michael R. BARRETT, Appellant, and\nLinda Ann Stephens, Appellee.\nNo. 89CA1341.\nColorado Court of Appeals, Div. II.\nAugust 16, 1990.\n*849 Sonheim, Helm & Less, Phillip A. Less, Arvada, for appellant.\nNo appearance for appellee.\nOpinion by Judge HUME.\nMichael R. Barrett (father) appeals the trial court's order modifying the amount of his obligation for child support payable to Linda Ann Stephens (mother). We affirm in part, reverse in part, and remand for rehearing or redetermination of the father's child support obligation.\n\nI.\nFirst, the father contends that the trial court erred in declining to adjust the basic child support schedule by deducting the children's earnings from either their expenses for higher education or the basic support obligation established by the schedule. We disagree.\nSection 14-10-115(13)(a)(III), C.R.S. (1987 Repl.Vol. 6B) provides that the court shall divide between the parties the expenses incurred by a child's attendance at an institution of higher education \"minus contributions of the child that actually reduce [such] expenditures, including employment and scholarships or grants.\" Section 14-10-115(13)(b), C.R.S. (1987 Repl.Vol. 6B) also provides that \"[a]ny additional factors that actually diminish the basic needs of the child may be considered for deductions from the basic child support obligation.\"\nWe interpreted these statutes in In re Marriage of Kluver, 771 P.2d 34 (Colo. App.1989) in remanding a support order with directions that the trial court consider a child's independent financial resources in determining support. In so doing, we noted that the support obligation should be reduced \"by an amount which represents that reduction in need (but not necessarily by the entire amount the child earns).\"\nUnder the father's interpretation of §§ 14-10-115(13)(a)(III) and 14-10-155(13)(b), a child's earnings from employment must inevitably be deemed to \"actually reduce expenditures for higher education\" or to \"diminish the child's basic need\" for support. However, in our view, such an arbitrary presumption runs contrary to the purpose of § 14-10-115(1) & § 14-10-115(3), C.R.S. (1987 Repl.Vol. 6B), which direct the court to determine amounts reasonable or necessary for a child's support and to provide relief from inequities resulting from the rigid application of the guidelines.\nWe conclude that the extent to which a child's income is or should be applied to the payment of extraordinary educational expenditures or the satisfaction of the child's basic needs is a question of fact to be determined by the trial court under the *850 totality of circumstances in each case. Cf. In re Marriage of Olar, 747 P.2d 676 (Colo. 1987) (trial court determines what constitutes \"reasonable needs\" and \"appropriate employment\" for a spouse seeking maintenance).\nThus, a trial court is not bound to deduct automatically the entire amount of a child's income from his or her educational costs or from the basic child support obligation. Rather, the court must determine whether and to what extent such income reasonably should be applied to reduce his or her need for parental support.\nHere, the mother testified that the older child applied her income from part-time employment toward a car payment and her own automobile insurance. Nothing in the record suggests that application of her earnings was unnecessary, wasteful, or unreasonable. Nor is it apparent that such use of the child's earnings actually reduced her need for parental support or diminished the costs of her higher educational needs.\nThe mother further testified that the younger daughter was involved in various athletic activities that precluded her from working during the summer before she entered college. In addition, the younger daughter had been advised not to work during her first two years of college because the time required to maintain a scholastic scholarship and two athletic scholarships would not leave time for employment.\nIn our view, this evidence was sufficient to support the court's exercise of its discretion in refusing to allow a deduction for either child's earnings in computing the parental child support obligation. Finding no abuse of discretion, we decline to disturb the trial court's ruling. See In re Marriage of Rosser, 767 P.2d 807 (Colo. App.1988).\n\nII.\nThe father also contends that the court erred in refusing to deviate from the child support guidelines in the light of evidence that certain items allocated as basic child support were duplicated and added as extraordinary education costs. We agree in part.\nHere, the trial court recognized that college room and board expenses allowed as adjustments under § 14-10-115(13)(a)(III) were in part duplicative of expenses already included in the basic support guidelines. However, the court reasoned that the mother would continue to incur a domiciliary room expense for the child regardless of her attendance at college. In addition, the court found that there were other offsetting indirect costs for books, supplies, transportation, and other personal expenses which would be increased by the child's attending college. Thus, the trial court concluded that the father should pay 84 percent of the basic child support obligation to the mother and 84 percent of the costs of the child's tuition, room, and board directly to the college.\nWe agree with the trial court's conclusion that the mother would be required to expend a certain portion of the basic child support obligation on those miscellaneous expenses associated with attending college, and that some duplicative room expense was a necessary continuing expense factor in the determination of basic support. However, we also agree with the father's contention that it is inequitable for the court to ignore the obvious duplication in costs for room and board at college during the school year. It is excessive for the court to require the father to bear both 84 percent of the basic child support obligation that includes room and board expenses expected to be incurred if the child lived in the mother's home and 84 percent of duplicative board and room expenses at college.\nWe hold, therefore, that the trial court abused its discretion in refusing to deviate from a strict application of the guideline calculations for basic child support to provide relief from expenses which, at least in part, were demonstrated to be duplicative. See In re Marriage of Rosser, supra. See also Colo.Sess.Laws 1990, ch. ___, § 14-10-115(13)(a)(II) at ___ (H.B. 90-1254 enacted effective July 1, 1990).\n\nIII.\nRelying on In re Marriage of Serfoss, 642 P.2d 44 (Colo.App.1981), the father *851 also contends that the court erred in requiring him to be proportionately responsible for payment of a debt incurred by the mother to pay for the older child's education at a trade school. We disagree.\nIn entering a child support order, the facts and circumstances of the parents and children as of the time of the hearing on support control. In re Marriage of McKendry, 735 P.2d 908 (Colo.App.1986).\nIn In re Marriage of Serfoss, supra, the parties' 1975 decree of dissolution did not provide for child support. In 1980, the mother moved for an order of retroactive child support. The trial court awarded her the cost of supporting the parties' children from the time of the decree in 1975 until the date of judgment in 1980. In reversing the judgment, we held that a husband cannot be required to reimburse his former spouse for amounts she expended for child support prior to the entry of a child support order.\nHere, the mother obtained a loan to enroll the older child in a trade school in December 1988. She filed her motion to modify on January 17, 1989. In April 1989, when the motion was heard, that child continued to attend school and the mother was making monthly payments toward the obligation. The trial court, relying on the facts and circumstances of the parents and children at the time of the hearing, apportioned between the parties only that amount which remained outstanding at the time the motion was filed. See § 14-10-122(1)(a), C.R.S. (1987 Repl.Vol. 6B). Under these circumstances, father's reliance on the Serfoss ruling is misplaced, and we find no error in the court ordering the father to pay his portion of the remaining obligation.\n\nIV.\nFinally, the father maintains that the court erred in concluding that mother was not underemployed. However, this determination is supported by the evidence and is, therefore, binding on appeal. See In re Marriage of Marshall, 781 P.2d 177 (Colo. App.1989).\nThose portions of the order determining that the children's incomes did not require deviation from the guidelines, that the father is obligated to pay a portion of the remaining debt incurred for the older child's education at a trade school, and that the mother was not underemployed are affirmed. That portion of the order determining the basic child support obligation without deviation from the guidelines for duplicative expenses is reversed, and the cause is remanded for redetermination of that issue.\nSTERNBERG, C.J., and RULAND, J., concur.\n", "ocr": false, "opinion_id": 1192112 } ]

[ "635 So. 2d 235" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4588, "opinion_text": "\n635 So. 2d 235 (1994)\nVernis J. LANDRY\nv.\nCITY OF ERATH, et al.\nNo. 94-C-0275.\nSupreme Court of Louisiana.\nMarch 25, 1994.\n*236 Denied.\nLEMMON, J., would grant the application and permit relator to amend his petition to seek a mandatory injunction requiring the Town not to arbitrarily deny payment of tort judgments and to place his judgment in line, along with the Town's other legal debts, for payment in due course by reasonable and non-discriminatory budget processes.\nDENNIS, J., not on panel.\n", "ocr": false, "opinion_id": 1759363 } ]

[ "401 F. Supp. 2d 619" ]

[ { "author_str": "Justice", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n401 F. Supp. 2d 619 (2005)\nLinda FREW, et al., Plaintiffs,\nv.\nAlbert HAWKINS, et al., Defendants.\nNo. CIVA3:93CA065WWJ.\nUnited States District Court, E.D. Texas, Paris Division.\nAugust 22, 2005.\n*620 *621 *622 Joaquin Amaya, Jr, Texas Rural Legal Aid, Plainview, for All Plaintiffs, Plaintiff.\nEdward Bradbury Cloutman, III, Law Offices of Ed Cloutman, Dallas, for All Plaintiffs, Class Members, Charlotte Garvin, Linda Frew, Maria Ayala, Mary. Fisher, Mary Jane Garza, Shannon Garcia, Plaintiffs.\nGregory Scott Coleman, Weil Gotshal & Manges, Austin, for Bridgett Cook, Linda Wertz, MD Susan Penfield, Dr William Archer, Richard Ladd, MD Beverly Koops, Defendants.\nLinda Ann Halpern, Attorney General's Office, Austin, for All Defendants, Defendant.\nMark J Hanna, Mark J Hanna PC, Austin, for Texas Dental Association, Movant.\nJohn Robert Heard, Heard & Smith, San Antonio, for All Plaintiffs, Class Members, Carla Frew, Charlotte Garvin, Linda Frew, Maria Ayala, Mary. Fisher, Mary Jane Garza, Shannon Garcia, Plaintiffs.\nEdwin N Horne, Attorney General's Office, Austin, for All Defendants, Dr Eduardo Sanchez, Michael. McKinney, Marina Henderson, Defendants.\nJeffrey S Levin, Texas Rural Legal Aid, Plainview, for Carla Frew, Linda Frew, Maria Ayala, Mary. Fisher, Mary Jane Garza, Crystal Noelevol Brown, James Curtis Brown, Jeremiah DeMark Phillips, Russell Kline Walton, All Plaintiffs, Plaintiffs.\nIsrael Morales Reyna, Texas Rural Legal Aid, Laredo, for All Plaintiffs, Plaintiff.\nSharon E Reynerson, Lone Star Legal Aid, Paris, for Dominique Shantel Frazar, Jeneva Frazar, Carla Frew, Linda Frew, Crystal Noelevol Brown, James Curtis Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Gloria Padilla, Martha Doe, Maria Ayala, Mary. Fisher, Mary Jane Garza, Plaintiffs.\nRichard E Salisbury, Office of the Attorney General, Austin, for All Defendants, Defendant.\nRodolfo David Sanchez, Texas Rural Legal Aid, Inc, Weslaco, for All Plaintiffs, Plaintiff.\nMelanie Plowman Sarwal, Weil Gotshal & Manges โ€” Austin, Austin, for Bridgett Cook, Don Gilbert, Linda Wertz, MD Susan Penfield, Dr William Archer, Richard Ladd, MD Beverly Koops, Defendants.\nMatthew F Stowe, Office of the Attorney General, Austin, for All Defendants, Defendant.\nPeter J Strelitz, Segal McCambridge Singer & Mahoney, Austin, for Bridgett Cook, Linda Wertz, MD Susan Penfield, Dr William Archer, Richard Ladd, Charles E Bell, Defendants.\nJane Kathryn Swanson, Attorney at Law, The Woodlands, for All Plaintiffs, Carla Frew, Linda Frew, Maria Ayala, Mary. Fisher, Mary Jane Garza, Crystal *623 Noelevol Brown, James Curtis Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Class Members, Charlotte Garvin, Shannon Garcia, Plaintiffs.\nSusan Finkelstein Zinn, Attorney at Law, San Antonio, for Carla Frew, Linda Frew, Dominique Shantel Frazar, Crystal Noelevol Brown, James Curtis Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Jeneva Frazar, Maria Ayala, Mary. Fisher, Mary Jane Garza, Gloria Padilla, Martha Doe, Dr William Archer, All Plaintiffs, Class Members, Charlotte Garvin, Shannon Garcia, Plaintiffs.\n\nORDER\nJUSTICE, Senior District Judge.\nDefendants' Rule 60(b) Motion for Relief From Judgment (Docket No. 406) has been presented for adjudication.\n\nBackground and Procedural History\nFiled on September 1, 1993, this civil action concerns the alleged failure of the State of Texas to implement a Medicaid program that assures that indigent children and youth receive timely, comprehensive health care. The action was brought by a class of more than one and one-half million indigent children in Texas who are entitled to health benefits through the Early Periodic Screening, Diagnosis and Treatment (\"EPSDT\") program.[1]See Docket No. 1, 93; see also 42 U.S.C. งง 1396a(a)(43),[2] 1396d(r).[3] In Texas, the program is referred to as \"Texas Health Steps,\" which is administered jointly by the federal government and the Texas Health and Human Services Commission. EPSDT is intended to be \"the nation's largest preventive health program for children.\" H.R. 3299, 101st Cong. ง 4213 (1989). It is \"among the most important programs that the Texas Department of *624 Health runs.\" Docket No. 133 at 8 (internal quotes omitted).\nThe purpose of the EPSDT program is to ensure that poor children receive comprehensive health care at an early age, in order that they will develop fewer health problems as they grow older. EPSDT is designed to provide health education, preventive care, and effective follow-up care for conditions identified during check-ups. Preventive health care identifies health problems that may respond to early treatment but, if left untreated, may instead lead to serious health conditions. For example, a heart murmur detected during an EPSDT screening, if untreated, could lead to heart failure. Severe anemia, if untreated, could result in behavioral problems and reduced mental capacity. Other important components of the EPSDT program include immunizations, parental education, assistance with scheduling appointments, transportation assistance, and coordination of EPSDT and other programs serving Medicaid-eligible children.\nAfter two years of extensive negotiation following the filing of this case, the parties proposed the Consent Decree to the Court in July of 1995. During a fairness hearing held in December of that year, the parties urged the Court to approve the proposed decree. The Court approved the Consent Decree as fair, reasonable, and adequate on February 16, 1996. Docket No. 135. Per the agreement of the parties, the Consent Decree expressly retains the Court's jurisdiction to rectify violations of its terms, and provides a mechanism to invoke this jurisdiction.[4] On November 10, 1998, Plaintiffs filed their first Motion to Enforce Consent Decree. Docket No. 208. After nearly a year and a half of discovery and jurisdictional challenges, the Court held a hearing in March of 2000 on Plaintiffs' motion (the \"2000 Hearing\"). Evidence was presented on multiple issues, including, inter alia: (1) proper implementation of the outreach program and delivery of required outreach reports; (2) operation of the State's managed care system; (3) Defendants' operation of toll-free numbers; and (4) provision of case management to all class members who need it, statewide. In a lengthy memorandum opinion and order, the Court found that the State had failed to comply with numerous provisions of the Consent Decree and that the Consent Decree is enforceable. See Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D.Tex.2000) (the \"2000 Opinion\"). In an attempt to judiciously consider the recommendations of state officials, the Court requested that the parties submit proposed corrective action plans, rather than the Court's unilaterally entering a comprehensive order of enforcement. Before submitting the proposed corrective action plans, however, Defendants brought two interlocutory appeals; and the Fifth Circuit stayed the Court's order requesting proposed corrective action plans during the pendency of the appeals. See Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2002).\nOne of the appeals involved Defendants' argument that a federal court's jurisdiction over a state official is limited by the Eleventh Amendment to requiring compliance with federal law. Defendants argued that the Consent Decree may not be enforced against them, to the extent that it goes beyond the scope of simple compliance *625 with federal law. The Court rejected this argument, but the Court was overruled by the Fifth Circuit on appeal. Frazar, 300 F.3d at 530. The Fifth Circuit held that the Eleventh Amendment prevented enforcement of the Consent Decree, unless the violation of the Consent Decree was also a statutory violation of the Medicaid Act that imposed a clear and binding obligation on the State. Id. at 543. The Supreme Court, however, unanimously reversed the Fifth Circuit, holding that the Consent Decree is enforceable, in its entirety, under Ex Parte Young.[5]Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004). The Supreme Court noted that, \"[t]he decree states that it creates `a mandatory, enforceable obligation,'\" in the process of holding that \"[o]nce entered, a consent decree may be enforced.\" Id. at 438, 440, 124 S. Ct. 899 (quoting Consent Decree ถ 302). On remand, the Fifth Circuit held that, absent the jurisdictional issues related to the Eleventh Amendment, it lacked interlocutory jurisdiction over the appeal.[6]Frazar v. Hawkins, 376 F.3d 444 (5th Cir.2004).\nThe Supreme Court, while clarifying that the Consent Decree is valid and enforceable in its entirety, also explained that \"the law's primary response to [the fear that enforcement of consent decrees can undermine the sovereign interests and accountability of state governments] has its source not in the Eleventh Amendment but in the court's equitable powers and the direction given by the Federal Rules of Civil Procedure.\" Frew, 540 U.S. at 441, 124 S. Ct. 899. It provided Defendants with a potential avenue for relief, Fed. R. Civ. P. 60(b)(5) (hereinafter \"Rule 60(b)(5)\"), and directed the Court and the parties to two cases as examples of the application of Rule 60(b)(5) to consent decrees in the context of institutional reform litigation. It also explained that a \"federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials.\" Id. at 442, 124 S. Ct. 899. Defendants thus filed the instant Rule 60(b)(5) Motion for Relief from Judgment (\"Defendants' Rule 60(b) Motion\") on November 4, 2004. Docket No. 406.\n\nThe Hearing and Memorandum Opinion\nThe Court held a hearing from June 6-15, 2005 (the \"June Hearing\"), on Defendants' Rule 60(b) Motion. Following the hearing, Plaintiffs and Defendants submitted briefs on the legal and factual issues involved in the instant motion. This memorandum opinion details the Court's findings of fact and conclusions of law based on the evidence presented at the June Hearing. Part One of the opinion discusses consent decrees and Rule 60(b)(5) motions generally, for the purpose of establishing the proper legal framework for the Court's analysis. Part Two details findings of fact and conclusions of law regarding Defendants' demand to dissolve the Consent Decree in its entirety. Part Three outlines findings of fact and conclusions of law regarding Defendants' alternative *626 demand for relief. Part Four addresses whether Defendants' demanded relief satisfies the tailoring requirement set forth in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992). Finally, Part Five contains the Court's analysis of whether Defendants have made reasonable efforts to comply with the Consent Decree, as required by Cooper v. Noble, 33 F.3d 540 (5th Cir.1994).[7]\n\nPART ONE: THE NATURE OF CONSENT DECREES AND RULE 60(b)(5)\nA. THE NATURE OF A CONSENT DECREE\nThe Court begins its analysis by describing the general nature of a consent decree, to provide context for the Court's analysis as to whether the Consent Decree should be dissolved in its entirety, as Defendants primarily demand. The Supreme Court has described a consent decree as \"an agreement between the parties to a case after careful negotiation has produced agreement on [its] precise terms.\" Local Number 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522, 106 S. Ct. 3063, 92 L. Ed. 2d 405 (1986) (internal quotations omitted) (quoted in Alberti v. Klevenhagen, 46 F.3d 1347, 1364 (5th Cir.1995)). Moreover, the Fifth Circuit has noted that \"once the district court enters the settlement as a judicial consent decree ending the lawsuit, the settlement takes on the nature of a judgment.\" Ho v. Martin Marietta Corp., 845 F.2d 545, 548 (5th Cir.1988). It is \"an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.\"[8]*627 Rufo, 502 U.S. at 378, 112 S. Ct. 748. A consent decree is not court-imposed; rather, it is a voluntary agreement between the parties involved in litigation that is then evaluated for fairness, and potentially accepted by the Court and entered as a judgment. In the instant case, as with all consent decrees, the Court was not a party to the Consent Decree negotiations and did not have a hand in crafting the obligations contained therein.\nIn Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004), the Supreme Court found, in the instant action, that although the Consent Decree implements the Medicaid statute \"in a highly detailed way, requiring the state officials to take some steps that the statute does not specifically require . . . [t]he same could be said . . . of any effort to implement the general EPSDT statute in a particular way.\" Id. at 439, 124 S. Ct. 899. Defendants thus voluntarily chose the result of its negotiations with Plaintiffs, the Consent Decree, to be its judicially enforceable method of implementing the general federal EPSDT statute.\nB. RULE 60(b)(5)\n1. Rule 60(b)(5) Generally\nRule 60(b)(5) provides, in relevant part,\nOn motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons . . . (5) the judgment has been satisfied, released, or discharged . . . or it is no longer equitable that the judgment should have prospective application.\nAs the Supreme Court wrote in the instant case, \"[t]he Rule [60(b)(5)] encompasses the traditional power of a court of equity to modify its decree in light of changed circumstances.\" Frew, 540 U.S. at 441, 124 S. Ct. 899. Under Rule 60(b)(5), the Court may relieve Defendants from the Consent Decree if the judgment has been satisfied, released, or discharged. Defendants do not argue that the Consent Decree has been satisfied, released, or discharged; instead, they argue that Defendants are in compliance with federal Medicaid law, thus rendering the Consent Decree unnecessary and its enforcement inequitable. In other words, Defendants argue that the ends of the Consent Decree have been met, not that the obligations within the Consent Decree have been satisfied, released, or discharged.[9] Defendants thus proceed with this motion under the second portion of Rule 60(b)(5), insisting that \"it is no longer equitable that the judgment should have prospective application.\"\nRule 60(b)(5) is a form of equitable relief. See Frew, 540 U.S. at 441, 124 S. Ct. 899; Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1145 (6th Cir.1997) (\"Equitable considerations are clearly factors a district court can address when they are related to a court's power and duty to modify, interpret, and oversee a consent decree.\"). \"Equity\" is defined as \"[t]he recourse to principles of justice to correct or supplement the law as applied to particular circumstances,\" or more generally, \"[t]he body of principles constituting what is fair and right.\" BLACK'S LAW DICTIONARY (8th ed.2004). Remedies grounded in equity, therefore, take into account all factors that contribute to a just, fair, and right outcome. In order to determine whether to order equitable relief, the Court examines the entire record-the facts and procedural history of the case, in addition to the *628 actions of the parties throughout the progression of the case.[10]\n2. Legal Standard for Rule 60(b)(5) Relief\nIn Frew, 540 U.S. at 441, 124 S. Ct. 899, the Supreme Court cites two cases as examples of the application of Rule 60(b) to consent decrees in the context of institutional reform litigation: Rufo, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867 and Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114 (3rd Cir.1979). An overview of these two Rule 60(b) application cases provides a necessary introduction to the legal framework for the Court's analysis.\nIn Rufo, the Supreme Court adopted a flexible standard for determining whether to modify an institutional reform consent decrees and announced a two-part test regarding their modification. 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867. Rufo involved a consent decree entered as a result of litigation regarding alleged unconstitutional conditions at Suffolk County Jail. A change in factual circumstance-an upsurge in the population of pretrial detainees-led the petitioners to file a Rule 60(b) motion for modification of a decree provision prescribing single-bunking.[11] The district court denied petitioners' Rule 60(b) motion, which was affirmed by the United States Court of Appeals for the First Circuit, although the Supreme Court found that the district court applied the wrong consent decree modification standard in its analysis. Id. In announcing the flexible modification standard applicable in the instant case, the Supreme Court explained a two-part test: (1) the party seeking modification of the consent decree must establish that a significant change in facts or law warrants revision of the decree, and (2) the court should determine whether the proposed modification is suitably tailored to the changed circumstances. See id. at 392, 112 S. Ct. 748.\nA flexible standard is desirable, the Rufo Court reasoned, because (1) the extended life of consent decrees increases the likelihood that significant changes will occur and (2) it serves the public's interest in the sound and efficient operations of its institutions.[12]Id. at 380-81, 112 S. Ct. 748. The Rufo Court also clarified that, within the \"flexible standard\" analysis,\n[T]he moving party bears the burden of establishing that a significant change in circumstances warrants modification of a consent decree. No deference is involved in this threshold inquiry. However, once a court has determined that a modification is warranted, we think that principles of federalism and simple common sense require the court to give *629 significant weight to the views of the local government officials who must implement any modification.\nId. at 392 n. 14, 112 S. Ct. 748.\nRufo provides a non-exhaustive list of three significant changes in factual conditions sufficient to support modification: (1) if the changed conditions \"make compliance with the decree substantially more onerous;\" (2) if the decree \"proves to be unworkable because of unforeseen obstacles;\" or (3) if \"enforcement of the decree without the modification would be detrimental to the public interest.\" Rufo, 502 U.S. at 384, 112 S. Ct. 748; see Thompson v. United States HUD, 404 F.3d 821, 827 (4th Cir.2005).\nIf the Court determines that Defendants have met their \"burden of establishing either a change in fact or in law warranting modification of a consent decree, the district court should determine whether the proposed modification is suitably tailored to the changed circumstance.\"[13]Id. at 391, 112 S. Ct. 748. The Rufo Court also warned that, although \"a district court should exercise flexibility in considering requests for modification of an institutional reform consent decree, it does not follow that a modification will be warranted in all circumstances.\" 502 U.S. at 383, 112 S. Ct. 748.\nIn Shapp, 602 F.2d 1114, a pre-Rufo case, the district court ordered modification of an institutional reform consent decree in light of changed circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered. The consent decree at issue in Shapp was entered as a result of litigation over Pennsylvania's EPSDT program, and the defendants were seeking to modify or vacate the decree based on (1) the exemplary performance of Pennsylvania's program, and (2) inability to comply, after a good faith effort, with certain terms of the decree. The district court modified the decree in three respects after finding that the defendants had made a good faith effort at compliance, but circumstances beyond the defendants' control and not contemplated by the court or parties \"put achievement of the [provisions' requirements] beyond reach.\"[14]Id. at 1120-21. The court denied the defendants' motion to vacate the decree. Id.\nTogether, Rufo and Shapp: (1) instruct the Court to apply a flexible standard that contemplates federalism concerns with respect to modification of a consent decree based on changed circumstances under Rule 60(b)(5) and (2) illustrate that not all changed circumstances should be considered in the analysis. Instead, an example of a relevant significant change in circumstances is one that is unanticipated and beyond the defendants' control.[15]\n*630 After the Supreme Court announced Rufo's flexible standard, the Fifth Circuit clarified the Rule 60(b) standard for modification of a consent decree in the context of institutional reform litigation, based on changed factual circumstances, in Cooper v. Noble. 33 F.3d 540, 544 (5th Cir.1994). The Cooper Court upheld a United States Magistrate Judge's denial of the defendants' Rule 60(b) motion in a pre-Prison Litigation Reform Act case applying the Rufo Rule 60(b) standard.[16] The court explained:\nWhen significant changes in factual conditions make a consent judgment unworkable, make compliance substantially more onerous, or make enforcement detrimental to the public interest, a court has the discretion to modify the judgment. However, the Supreme Court [in Rufo] never suggested that changed factual circumstances in and of themselves were sufficient grounds for relief from a judgment. In fact, the Court insisted that the petitioning party must \"make a reasonable effort to comply with the decree.\" Thus, even if we take as true all the alleged changes in factual conditions, the county officials are far from meeting their burden under Rufo. The county officials must also: (1) show that those changes affect compliance with, or the workability or enforcement of, the final judgment, and (2) show that those changes occurred despite the county officials' reasonable efforts to comply with the judgment.\nCooper, 33 F.3d at 544 (quoting Rufo, 502 U.S. at 385, 112 S. Ct. 748) (citations omitted). A change in factual circumstances, without more, is thus insufficient to warrant modification of a consent decree in the Fifth Circuit; the moving party must additionally show how the change in factual circumstances warrants modification of the consent decree by \"show[ing] that those changes affect compliance with, or the workability or enforcement of, the final judgment.\"[17]Cooper, 33 F.3d at 544; cf. Rufo, 502 U.S. at 384, 112 S. Ct. 748. Stated more simply, the Fifth Circuit clarified that consent decree modification under Rule 60(b) requires satisfaction of the Rufo test, in addition to a showing that the moving party made reasonable efforts to comply with the judgment, similar to Shapp.\n3. The Parties Misunderstand the Applicable Rule 60(b)(5) Standard\nThe Court now addresses the parties' arguments with respect to the Rule 60(b)(5) legal standard that the Court should employ. The Court finds that both parties are mistaken as to the applicable standard; instead of applying the standards the parties proffer, the Court will apply the flexible standard as set forth in Rufo, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867, Shapp, 602 F.2d 1114, Cooper, 33 F.3d 540, and their progeny, as detailed in Parts I(B)(2) and I(B)(4).\n\n\n*631 Defendants' Arguments\n\nThe crux of Defendants' argument in support of their Rule 60(b) motion is that they are currently in compliance with federal Medicaid law,[18] which they assert is sufficient to warrant dissolution of the Consent Decree either in its entirety, or for the areas of Texas under managed care, under Rule 60(b)(5). Tr. Vol. VIII, pp. 77, 84-85, 111 (closing argument of Defendants' counsel); Defendant's Post-Hearing Brief at 3. Because they are currently in compliance with federal law, Defendants argue, the objects of the Consent Decree have been attained, and \"it is no longer equitable that the judgment should have prospective application.\" Id. at 2, 5 (citing Rule 60(b)(5)). Defendants argue that \"[w]hen it was entered, and throughout the ten years and more of its application, the Consent Decree could have only one legitimate object-to ensure that Texas complied with federal law regarding the administration of its EPSDT program.\" Id. Alternatively, Defendants argue that they have established compliance with federal law in all \"Urban Areas\"[19] of the State; thus, the objects of the Consent Decree have been attained, and it should have no prospective application, with respect to these areas. In sum, as articulately summarized at the June Hearing and outlined in Defendants' Post-Hearing Brief, Defendants demand only two alternative forms of relief, each based solely on compliance with federal law: (1) dissolution of the Consent Decree in its entirety, or (2) dissolution of the Consent Decree in its entirety for all Urban Areas of Texas. Defendants' Post-Hearing Brief at 1-4, 75-79; Tr. Vol. VIII, p. 88 (closing argument of Defendants' counsel).[20]\nNotably, neither in their original Rule 60(b) Motion, at the June Hearing, nor in their Post-Hearing Brief do Defendants cite an applicable Rule 60(b) standard for modification or dissolution of consent decrees. *632 Instead, they simply recite the plain language of Rule 60(b)(5); they do not discuss either of the two cases cited by the Supreme Court in its discussion of Rule 60(b)(5) in Frew, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855, nor do they discuss any other cases applying Rule 60(b)(5) or addressing the burden placed on a party moving for modification or dissolution of a consent decree under Rule 60(b)(5).\nAdditionally, Defendants do not argue that they are in substantial compliance with the Consent Decree; rather, they argue that they are in compliance with federal law and that such compliance, regardless of compliance with the Consent Decree, is sufficient to warrant dissolution under Rule 60(b)(5). See Defendants' Post-Hearing Brief at 78-79; Tr. Vol. VIII, pp. 76-88 (closing argument of Defendants' counsel).\n\nPlaintiffs' Arguments\nPlaintiffs contend that Defendants are not entitled to Rule 60(b)(5) relief, because: (1) compliance with federal law is insufficient, by itself, to warrant dissolution of the Consent Decree; (2) Defendants are not in compliance with federal law; (3) Defendants have never attempted to comply, in good faith, with certain provisions of the Consent Decree; and (4) the objects of the Consent Decree have not been attained. See Plaintiffs' Post-Hearing Brief at 3-10; Tr. Vol. VIII, pp. 89-90, 99 (closing argument of Plaintiffs' counsel).\nIn support of their response to Defendants' request for dissolution of the Consent Decree in its entirety, Plaintiffs cite a legal standard set forth in Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038, 132 L. Ed. 2d 63 (1995).[21] Plaintiffs argue that Defendants cannot satisfy their burden for dissolution under Rule 60(b), in that they have not shown a good faith commitment to the whole of the Consent Decree's provisions, as they intentionally violated or ignored, inter alia, ถถ 17, 35, 37, 171 and 223 thereof. Plaintiffs' Post-Hearing Brief at 5; Plaintiffs' Motion for Sanctions (Docket No. 429).\nIn support of their response to Defendants' request for modification of the Consent Decree to exclude the Urban Areas of the State, Plaintiffs argue that Defendants have not met Rufo's requirements for modification under Rule 60(b)(5). Id. at 6-7. Plaintiffs thus distinguish between the Rule 60(b)(5) standard for modification of institutional reform consent decrees and the standard for dissolution. Defendants' managed care companies, argue Plaintiffs, remain in disarray, their outreach efforts have no effect or even make things worse, and their overall outcomes are poor. Id.\na. The Rufo Flexible Standard Applies to Both Modification and Dissolution of Consent Decrees\nWhile Defendants do not cite a legal standard for Rule 60(b) beyond the text of the rule itself, Plaintiffs distinguish between the standard for consent decree modification and the standard for consent decree dissolution. See Plaintiffs' Post-Hearing Brief at 3-7. The applicable legal standard in the Fifth Circuit for both types of relief, however, is that announced in Rufo and applied in Cooper.\nFirst, the Supreme Court does not draw a distinction between the two types of relief in Rufo or in Frew, nor does the Fifth Circuit draw a distinction in Cooper. Indeed, the defendants in Rufo moved to vacate the decree as well as to modify it and, on remand, the district court applied a single flexible standard for determining whether either type of relief was warranted under Rule 60(b). See Rufo, 502 U.S. *633 367, 112 S. Ct. 748, 116 L. Ed. 2d 867; Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14 (D.Mass.1993). The defendants in Cooper also demanded relief from the whole of the consent judgment via a Rule 60(b) motion, and the Magistrate Judge applied Rufo's flexible standard in the process of denying their motion. Cooper, 33 F.3d at 540.\nSecond, multiple courts have addressed and dismissed similar arguments with respect to a differing standard for consent decree modification versus that for consent decree dissolution under Rule 60(b)(5). For example, the defendants in Alexander v. Britt, 89 F.3d 194 (4th Cir.1996), argued that the standard set forth in Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S. Ct. 630, 112 L. Ed. 2d 715 (1991), applies to Rule 60(b) motions for dissolution, as opposed to modification, of a consent decree. Rufo, the defendants argued, applies only to Rule 60(b) motions to modify a consent decree. The Alexander Court harmonized the Rufo and Dowell standards, by explaining that the two formulations of the Rule 60(b) standard, announced by the Supreme Court in two consecutive terms, simply illustrate the flexibility of the standard and the need to tailor the inquiry to the specific context of the case. 89 F.3d at 197. The Alexander Court thus found that a court should employ a single, flexible standard for either modification or dissolution of a consent decree under Rule 60(b). Id.; see Rufo, 502 U.S. at 380, 112 S. Ct. 748 (\"The same theme [the need for flexibility in administering consent decrees] was repeated in our decision last Term in [Dowell].\"); see also Nat'l Labor Relations Board v. Harris Teeter Supermarkets, 215 F.3d 32, 36 (D.C.Cir.2000) (\"Dowell and Rufo must be read together. . . . \").\nFinally, employing a unified flexible standard for consent decree modification and dissolution under Rule 60(b) is simply logical. Because both types of relief are forms of equitable relief, and both may be demanded under Rule 60(b), a single standard that takes into account equitable considerations pertaining to the unique circumstances of each case (as the Rufo standard does) is the most efficient standard under which to determine whether significant changed factual circumstances exist that warrant any change in, or relief from, obligations contained within a consent decree.\nFurthermore, the Missouri v. Jenkins standard is inapplicable to the instant case. 515 U.S. 70, 115 S. Ct. 2038, 132 L. Ed. 2d 63 (1995). In Jenkins, Missouri demanded that it be relieved of the district court order that required the State to fund remedial quality education programs in the context of school desegregation litigation. In its analysis, the Jenkins Court discussed \"the showing that must be made by a school district operating under a desegregation order for complete or partial relief from that order,\" a test it had previously articulated in Freeman v. Pitts, 503 U.S. 467, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992). Id. at 88-89, 115 S. Ct. 2038. However, Jenkins did not involve modification or dissolution of a consent decree, nor was the defendants' motion for relief from the judgment's obligations made under Rule 60(b). The Court thus declines to apply the Jenkins standard, as urged by Plaintiffs, as it does not apply to either the Rule 60(b)(5) motion before the Court or to the type of judgment from which Defendants demand relief.\nb. Defendants Misstate the Objects of the Consent Decree\nDefendants' main argument in support of their demand for dissolution of the Consent Decree in its entirety is that the *634 objects of the Consent Decree have been attained. As the Supreme Court admonished, \"when the objects of the decree have been attained, the responsibility for discharging the State's obligations [must be] returned promptly to the State and its officials.\" Frew, 540 U.S. at 442, 124 S. Ct. 899. Defendants thus argue that the only legitimate object of the Consent Decree, to ensure that Texas complied with federal law regarding the administration of its EPSDT program, has been attained, and it is thus \"no longer equitable that the judgment should have prospective application.\" Frew, 540 U.S. at 442, 124 S. Ct. 899; Defendants' Post-Hearing Brief at 3; Rule 60(b)(5). Defendants' argument, therefore, can be interpreted as two discrete assertions: (1) the sole object of the Consent Decree is to ensure compliance with federal law, and (2) Defendants are currently in compliance with federal law. Because the Court finds that compliance with federal law is not the sole object of the Consent Decree, the second assertion need not be addressed.[22]\nPlaintiffs respond to Defendants' argument by citing Rufo's admonishment that a court should not rewrite the decree to reduce it to the constitutional minima. Rufo, 502 U.S. at 391, 112 S. Ct. 748. In Rufo, the Supreme Court stated:\nA proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor. Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances. A court should do no more, for a consent decree is a final judgment that may be reopened only to the extent that equity requires. The court should not \"turn aside to inquire whether some of [the provisions of the decree] upon separate as distinguished from joint action could have been opposed with success if the defendants had offered opposition.\"\nId. at 391-92, 112 S. Ct. 748 (quoting United States v. Swift & Co., 286 U.S. 106, 116-17, 52 S. Ct. 460, 76 L. Ed. 999 (1932)). Plaintiffs thus argue that Defendants' assertion that the sole object of the Consent Decree is to ensure compliance with federal law implicitly requires the Court to rewrite the Consent Decree to conform to the constitutional floor, in clear violation of Rufo. The Court finds Plaintiffs' argument to be meritorious.\nIn rejecting Defendants' argument, it is sufficient to find that compliance with federal law is not the sole object of the Consent Decree. First, ถ 6 of the Consent Decree states:\nTo address the parties' concerns, to enhance recipients' access to health care, and to foster the improved use of health care services by Texas EPSDT recipients, the parties agree and the Court orders Defendants to implement the following changes and procedure for the Texas EPSDT program.\nThe Consent Decree itself does not refer to mere compliance with federal law as its object; rather, it speaks to the broader goals of enhancing recipients' access to health care and improving the use of health care services by Texas EPSDT recipients. The Consent Decree's stated purpose is, moreover, not limited by importing any reference to federal Medicaid law in ถ 6. Finally, the Consent Decree implements the Medicaid statute \"in a *635 highly detailed way, requiring the state officials to take some steps that the statute does not specifically require.\" Frew, at 540 U.S. at 439, 124 S. Ct. 899. To interpret the sole object of the Consent Decree to ensure compliance with something less than that which is stated in the Consent Decree itself would be akin to rewriting the Consent Decree to conform to the constitutional floor. Such action is clearly prohibited by the Supreme Court's holding in Rufo. See 502 U.S. at 391-92, 112 S. Ct. 748.\nSecond, as the Fifth Circuit has noted, \"[t]he very nature of a consent agreement is such that parties will agree to act in ways they do not believe the Constitution requires in order to save themselves the time, expense, and inevitable risk of litigation.\" Cooper, 33 F.3d at 545. If the sole object of the Consent Decree is compliance with the minimum requirements of federal law, as Defendants argue, and Defendants were thus entitled to dissolution of the Consent Decree under Rule 60(b)(5), without reference to the naturally enhanced obligations of the Consent Decree, Plaintiffs would not receive the benefits for which they bargained; and Defendants would never be required to comply with the obligations which they undertook in exchange for saving the time, expense, and inevitable risk of litigation.\nTaking into account the Consent Decree's statement as to its purpose, Cooper's explication of the nature of a consent decree, and Rufo's admonishment to avoid rewriting a consent decree to merely conform to the constitutional floor, the Court disallows Defendants' argument that the sole object of the Consent Decree is to ensure that Texas complies with federal law regarding the administration of its EPSDT program. Because it is unnecessary to delineate the objects of the Decree beyond discarding Defendants' arguments, the Court abstains from doing so.\nc. Compliance With Federal Law, Alone, is Insufficient to Warrant Rule 60(b)(5) Relief\nGiven the Court's rejection of Defendants' argument that compliance with federal law is the sole object of the Consent Decree, the alternative interpretation of Defendants' argument will be addressed, i.e., that compliance with federal law, by itself, is sufficient to warrant relief under Rule 60(b)(5). For this assertion to be accurate, compliance with federal law must be sufficient, by itself, to prove significant changed circumstances warranting dissolution of the Consent Decree, and dissolution of the Consent Decree must be suitably tailored to this changed circumstance. See Rufo, 502 U.S. at 384-91, 112 S. Ct. 748. The Court finds that this is not the case.\nWhile compliance with federal law may be one factor in assessing changed factual circumstances, it is neither the focus of the Court's inquiry nor dispositive of the merits of Defendants' Rule 60(b) Motion. Defendants cite no authority for the assertion that compliance with federal law is sufficient, alone, to warrant relief under Rule 60(b), nor has the Court discovered any inquiry into compliance with federal law in the context of a Rule 60(b) motion for relief from a consent decree. Instead, courts addressing modification or dissolution of a consent decree since 1992 are bound by Rufo's flexible standard and its requirements to prove both that significant changed factual circumstances warrant modification of the consent decree and that the demanded relief is suitably tailored to the changed circumstances. Rufo, 502 U.S. at 384-91, 112 S. Ct. 748; see Frew, 540 U.S. at 441, 124 S. Ct. 899. Defendants' contention that compliance with federal law, without more, is sufficient to warrant *636 relief under Rule 60(b) improperly circumvents both prongs of the Rufo test.\nFurthermore, the Supreme Court noted Defendants' argument that \"[a] State in full compliance with federal law could remain subject to federal court oversight through a course of judicial proceedings brought to enforce the consent decree.\" Frew, 540 U.S. at 438, 124 S. Ct. 899. The Supreme Court, cognizant of Defendants' concern that it could be bound by the Consent Decree despite compliance with federal law, unanimously held that the Consent Decree is enforceable in its entirety unless and until a federal court grants a Rule 60(b)(5) motion. Frew, 540 U.S. at 431, 124 S. Ct. 899. It did not mention federal law compliance as a factor in the Rule 60(b)(5) analysis; rather, it directed the Court to Rufo and Shapp as examples of the proper application of Rule 60(b)(5) to modification of institutional reform consent decrees, neither of which discusses the merits of the claims on which a consent decree is based.\nDissolution based on mere compliance with the minimum requirements of federal law is, additionally, inequitable, because it would permit perpetual re-litigation of the merits of Plaintiffs' claims. In choosing to voluntarily enter into the Consent Decree, Defendants waived the opportunity to litigate the merits of the claims in Plaintiffs' Third Amended Complaint in exchange for negotiating the terms of the Consent Decree and avoiding the time, expense, and inevitable risk of litigation. See Cooper, 33 F.3d at 545. Through their argument that compliance with federal law necessarily warrants relief under Rule 60(b)(5), however, Defendants are seemingly attempting to re-litigate the claims underlying the Consent Decree. If the basis for a meritorious Rule 60(b) motion is that the claims underlying the consent decree are not meritorious, then parties to consent decrees would be permitted to file periodic Rule 60(b) motions asserting compliance with federal law and, in effect, continually re-litigate the underlying claims until a court determines the defendants are in compliance with federal law and the decree is dissolved. The party filing the Rule 60(b) motion would potentially be able to eliminate consent decree obligations, even if there is no attempted compliance with its legally enforceable terms, no showing that conformity to federal law makes compliance with the consent decree substantially more onerous or unworkable, and no showing that the requested relief is sufficiently tailored to the changed factual circumstances. See Rufo, 502 U.S. at 384-91, 112 S. Ct. 748; Cooper, 33 F.3d at 545. It follows that the parties opposing dissolution would not enjoy the benefits for which they bargained or the judicially enforceable obligations upon which they relied in entering into the consent decree; and the parties seeking dissolution would paradoxically be entitled to equitable relief despite their inequitable behavior. A Rule 60(b) motion is not a vehicle by which Defendants may disregard the voluntary obligations contained in the Consent Decree, allow time to pass, and then litigate the underlying claims in hopes of never actually complying with the its terms.\nBased on the absence of authority for Defendants' argument, contradiction with the Rufo Rule 60(b) consent decree modification standard and the inequities involved in simply ruling on the merits of the claims which were the basis for negotiation and entry of the Consent Decree, the Court rejects Defendants' argument that compliance with federal law, by itself, is sufficient to warrant Rule 60(b)(5) relief. Because Defendants' asserted Rule 60(b) standard is found to be wanting, the Court abstains from determining whether Defendants are *637 currently in compliance with federal Medicaid law.\nAdditionally, it is noted that Plaintiffs adamantly object to the assertion that Defendants are currently in compliance with federal Medicaid law. See Plaintiffs' Post-Hearing Brief at 162-181; Tr. Vol. VIII, pp. 89-90, 99 (closing argument of Plaintiffs' counsel). Specifically, Plaintiffs argue, inter alia, that: (1) Defendants' protocols are not designed to effectively inform class members about EPSDT, in violation of 42 U.S.C. ง 1396a(a)(43)(A) and 42 C.F.R. ง 441.56(a)(1); (2) Medical checkups are incomplete, in violation of 42 U.S.C. ง 1396a(a)(43)(B); (3) \"requests\" for medical checkups go unmet; and (4) Defendants do not \"arrange\" follow-up treatment that class members need, in violation of 42 U.S.C. ง 1396a(a)(43)(C). Id.\nAs the parties have either failed to cite the proper standard for Rule 60(b) relief, or have cited to a standard inapplicable to the instant case, the Court will hereafter interpret the parties' arguments to comply with the appropriate standard as set forth in Frew, Rufo, Shapp and Cooper. By following relevant precedent, taking general equitable considerations into account and \"ensur[ing] that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials,\" Frew, 540 U.S. at 442, 124 S. Ct. 899, the Court will determine whether, and to what extent, Rule 60(b)(5) relief is warranted in the instant case.\n4. Overview of Cases Applying Rule 60(b) to Consent Decrees\nIn this section, the Court analyzes cases determining whether significant changes in circumstances warranting revision of a consent decree under Rule 60(b) exist, in order to inform the Court's determination of whether Defendants have met their burden in the instant case. Cases applying Rufo's tailoring requirement are discussed in Part IV, infra.\na. Cases Finding A Significant Change in Factual Circumstances\nGenerally, in the analysis of whether to modify a consent decree, courts first consider whether there is a relevant significant change in factual circumstances that fits within one of Rufo's three categories: (1) if the changed conditions \"make compliance with the decree substantially more onerous;\" (2) if the decree \"proves to be unworkable because of unforeseen obstacles;\" or (3) if \"enforcement of the decree without the modification would be detrimental to the public interest.\" Rufo, 502 U.S. at 384, 112 S. Ct. 748. Indeed, this is the Fifth Circuit's approach. Cooper, 33 F.3d at 544. While Rufo does not necessarily preclude the possibility that other changed factual circumstances may warrant modification of a consent decree, post-Rufo courts typically analyze changed factual circumstances within Rufo's three-category structure.\nAfter the Supreme Court's Rufo decision, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867, the case was remanded to the United States District Court for the District of Massachusetts for reconsideration under the appropriate, flexible standard. On remand, the district court denied the defendants' motion to vacate the consent decree and two motions to modify the consent decree;[23] the First Circuit then affirmed the denials. Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14 (D.Mass.1993); Inmates of the Suffolk *638 County Jail v. Rufo, 12 F.3d 286 (1st Cir.1993). The district court found a significant changed circumstance-an upsurge in pretrial detainee population-but then found that the defendants' proposed modifications \"fail the test that this court `should consider whether the proposed modification is suitably tailored to the changed circumstance[s].'\" Rufo, 148 F.R.D. at 16-17 (quoting Rufo, 502 U.S. at 383, 112 S. Ct. 748). The district court found that the upsurge in pretrial detainee population was \"higher than actually anticipated or reasonably foreseeable\" and thus satisfied Rufo's requirement that a significant change in factual circumstances existed that made compliance with the decree substantially more onerous.[24]Rufo, 148 F.R.D. at 20; Rufo, 502 U.S. at 384, 112 S. Ct. 748.\nReynolds v. McInnes, 338 F.3d 1221 (11th Cir.2003), involved a consent decree resulting from an action alleging racial discrimination in employment practices by Alabama state agencies. The district court found that the defendants had made reasonable, good faith efforts at complying with the consent decree, although the efforts had been unsuccessful with respect to one article contained in the consent decree. Reiterating that the standard for modification of consent decrees is a flexible one, the Reynolds Court found that \"the fact that a provision of a consent decree has proven to be unworkable is itself a significant change in circumstances.\" 338 F.3d at 1228-29. Thus, the court rejected the plaintiffs' argument that, without evidence of the specific circumstances that gave rise to the provision, there can be no determination that those circumstances have changed. The plain fact that the defendants, after good faith efforts, were unable to comply with a consent decree provision was sufficient to satisfy the Rufo flexible standard. The court, in response to this significant changed circumstance, modified 1 of the 21 articles contained in the consent decree.\nIn the same vein, Shapp, a pre-Rufo case, involved a consent agreement under which the defendants were responsible for 180,000 screenings per year. In support of their Rule 60(b) motion, the defendants presented evidence that the total population eligible for EPSDT screening was between 230,000 and 250,000 persons, \"a figure which, due to declining welfare rolls, was significantly lower than had been expected at the time of the consent decree.\" Shapp, 602 F.2d at 1118. Given the relatively low number of eligibles, they argued, in addition to a 35-45% screening no-show rate, achievement of the screening goals was virtually impossible. Additionally, the defendants argued that it was impossible to comply with the consent decree provision requiring them to provide treatment for discovered abnormalities within 60 days of the EPSDT examination in which they were discovered. The district court found that, despite good faith efforts, both the screening goals and 60-day treatment rule were impossible to perform. Id. at 1120. Accordingly, the district court eliminated the screening goals and qualified the 60-day treatment provision, and both modifications were affirmed by the Third Circuit. Id. Though Shapp was decided approximately 13 years before Rufo, the Supreme Court cited it as an example of Rule 60(b) application to a consent decree relating to a State's EPSDT *639 program, and it is instructive with respect to illustrating an example of changed factual circumstances warranting revision of a consent decree under Rule 60(b).\nIn Thompson v. United States HUD, 404 F.3d 821 (4th Cir.2005), the Fourth Circuit, applying Rufo, found that the magnitude of a party's failure to comply with the terms of the consent decree was a significant change in circumstances warranting modification of the decree. Cf. Pigford v. Veneman, 292 F.3d 918 (D.C.Cir.2002) (finding that class counsel's inability and/or unwillingness to meet consent decree deadlines constituted a significant changed circumstance under Rufo). The Thompson Court found that the defendants were \"woefully behind schedule with regard to many provisions of the Consent Decree,\" 404 F.3d at 825, but focused on one failure as support for the modification of the decree. The consent decree at issue in Thompson required the defendants to make available 911 hard units of housing (as opposed to rent vouchers) by a specified date; on that specified date, the defendants had supplied only 8 of the required units. The court thus decided to extend jurisdiction over the defendants, modifying the consent decree's provision that the district court would exercise jurisdiction for only a limited period of time that was near expiration. The Thompson Court found that the plaintiffs had not anticipated the exceptional magnitude of non-compliance and that the modification ensured that the decree could be efficiently enforced.\nb. Cases Finding No Significant Change in Factual Circumstances Warranting Revision of a Consent Decree\nIn Cooper, 33 F.3d 540, inmates brought a class action against county officials for alleged unconstitutional conditions at a jail. Ten years after the consent judgment was entered, the county officials filed a Rule 60(b) motion requesting complete relief from the judgment, asserting, inter alia, significant changes in factual circumstances. The county officials argued that dramatic and unforeseen changes had occurred in the prison system since the final judgment was entered. They contended that jail conditions and procedures had been radically altered by the construction of a new jail, and the resulting conditions and procedures were either in conformity with, or improvements upon, the stipulations contained in the final judgment. The district court found, and the Fifth Circuit affirmed, that the county officials neither (1) adequately explained how the factual changes affected the workability of the final judgment, compliance with the judgment, or enforcement of the judgment, nor (2) showed that those changes occurred despite their reasonable efforts to comply with the judgment. On these bases, the court denied the defendants' Rule 60(b) request for dissolution of the consent judgment.[25]\n*640 Alexander, 89 F.3d 194, involved a class action against state officials responsible for the administration of North Carolina's Aid to Families with Dependent Children and Medical Assistance (Medicaid) programs. The parties entered into a consent decree under which the administrators agreed to meet the deadlines that federal regulations mandate for processing applications; the consent decree also provided that the court would retain jurisdiction over its subject matter for six years. The defendants moved, pursuant to Rule 60(b), to dissolve the consent decree after less than two years, arguing that they had complied with the decree for a reasonable period of time sufficient to establish that the decree had served its purpose. In denying the defendants' motion for dissolution, the court found that \"[w]ithout proof of a reasonable period of compliance, regardless of a party's subjective good faith or good intentions, equitable considerations weigh strongly against terminating a consent order.\" Id. at 202. The court found that the defendants had not complied with the decree for a reasonable period of time; indeed, the defendants had never complied fully with the consent decree. The court noted that \"[o]nly compliance for substantially longer periods has been regarded as significant evidence of good faith compliance.\"[26]Id. at 201. The Alexander Court thus found that the defendants' two-year period of alleged compliance was insufficient to constitute significant changed factual circumstances warranting revision of the consent decree under Rufo and Rule 60(b).\n\nPART TWO: DISSOLUTION OF THE CONSENT DECREE IN ITS ENTIRETY\nIn determining whether to award to Defendants their primary demanded relief, dissolution of the Consent Decree in its entirety, the Court considers evidence of all aspects of the Texas Health Steps program. Accordingly, the findings of fact in both Part II (Dissolution of the Consent Decree in its Entirety) and Part III (Dissolution as to all Urban Areas of Texas) are taken into account in the Court's reaching its conclusions of law with respect to dissolution of the Consent Decree in its entirety. Evidence relating to the Texas Health Steps program's overall performance, exclusive of evidence relating to Defendants' STAR MCOs,[27] includes: (1) statistics and anecdotal evidence relating to class members' receiving medical checkups and dental services; (2) outreach and informing efforts; and (3) case management services.\nA. MEDICAL CHECKUPS AND PROVISION OF DENTAL SERVICES\nThe Court, first, addresses Defendants' provision of medical checkups and dental services, as both parties emphasized *641 these EPSDT services in the presentation of their evidence regarding the overall performance of Texas Health Steps. The Court finds, as the parties argue, that the number of class members receiving medical checkups and the number of class members receiving dental services are the most reliable indicia of the overall performance of Texas Health Steps and, as such, constitute the primary bases for the Court's conclusions of law with respect to the Texas Health Steps program as a whole. This evaluation metric is consistent with the Consent Decree, as ถ 2 states that \"Check Ups are the cornerstone\" of Texas Health Steps. In the analysis that follows, the Court finds that Defendants have failed to prove that significant changed factual circumstances exist that warrant modification of the Consent Decree with respect to either class members' receipt of medical checkups or Defendants' provision of dental services. Accordingly, the Court finds that Defendants have failed to meet their burden under Rufo to prove significant changed factual circumstances with respect to medical checkups and provision of dental services warranting dissolution of the Consent Decree. See 502 U.S. at 392, 112 S. Ct. 748.\n1. The CMS-416 as a Measure of the Overall Performance of Texas Health Steps\nAs a general indicator of the overall performance of Texas Health Steps, both parties presented evidence relating to medical checkups and dental service utilization, as reported to the federal government on the \"CMS-416.\" Defendants report, inter alia, medical checkup and dental service statistics annually to the Centers for Medicare and Medicaid Services (\"CMS\"), the federal agency responsible for oversight of the Medicaid program, in a \"CMS-416\" report.[28] The Court thus, initially, considers medical checkup and dental service statistics, as reported on the CMS-416, to determine whether significant changed factual circumstances exist that warrant dissolution of the Consent Decree. While the Court finds that medical checkups and dental service provision are the most comprehensive statistics evidencing the overall performance of Texas Health Steps, it does not necessarily follow that these statistics, as reported on the CMS-416, accurately reflect the overall performance of Texas Health Steps.\nFederal law mandates specific reporting requirements for EPSDT services. Specifically, 42 U.S.C. ง 1396a(a)(43)(D) requires that a state Medicaid plan provide for:\nreporting to the Secretary []in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance . . . information relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year . . . (i) the number of children provided child health screening services, (ii) the number of children referred for corrective treatment . . . (iii) the number of children receiving dental services, and (iv) the State's results in attaining the participation goals set for the State under section 1905(r).\n*642 (emphasis added). The CMS-416 is the federal form that States are required to submit pursuant to 42 U.S.C. 1396a(a)(43)(D), which includes, inter alia, a \"participation ratio\"[29] and a \"screening ratio\"[30] regarding medical checkups, as well as a figure reporting the total number of eligibles receiving dental services. Tr. Vol. III, p. 161 (testimony of Dr. Bultman[31]); D. Ex. 94.\nDefendants maintain that, although the CMS-416 participation ratio potentially understates the performance of the Texas Health Steps program, \"[t]he participation rate and the screening rate [as reported on the CMS-416] are the best-and the only fair-measures of the Texas Health Steps program's performance.\" Defendants' Post-Hearing Brief at 21; Tr. Vol. IV, p. 16 (testimony of Dr. Bultman). Plaintiffs, however, maintain that the CMS-416 participation ratio overstates the number of eligible children who actually receive medical checkups and is thus not a reliable indicator of the Texas Health Steps program's overall performance. Plaintiffs' Post-Hearing Brief at 44; Tr. Vol. VIII, p. 91 (closing argument of Plaintiffs' counsel). Furthermore, Plaintiffs argue, any increase in the CMS-416 participation ratio is insufficient to warrant relief under Rule 60(b). See Tr. Vol. VIII, pp. 89-90, 99 (closing argument of Plaintiffs' counsel). With respect to dental services, Defendants argue that Texas' dental program is exemplary when compared to other States' and that Texas' dental participation ratio has significantly increased since entry of the Consent Decree.[32] Plaintiffs respond *643 that the number of class members receiving no preventive dental care is rapidly increasing, thus Defendants' dental program's performance has not significantly improved.\n2. Medical Checkups\na. How the CMS-416 Participation Ratio is Calculated\nThe CMS-416 participation ratio is the fraction resulting from the number of class members who receive at least one initial or periodic screening over the number of class members \"who should receive at least one periodic screening.\" D. Ex. 141 at 2 (testimony of Cynthia Ruff[33]); D. Ex. 97 at 3. The number of class members who should have received a checkup during the year, the denominator in the equation, is not the total number of class members; instead, it is adjusted to account for both the average period of Medicaid eligibility during the year and the number of recommended screens per age group. D. Ex. 97 at 3. For example, the average period of eligibility in 2003 and 2004 was .74 years, or slightly less than nine months, so the total number of class members is multiplied by .74 in the process of determining the denominator for the ratio. D. Ex. 94; D. Ex. 96 at 1. The exact formula that Defendants use in this calculation has recently changed twice-in 1999 and 2001-the implications of which are discussed in Part II(A)(2)(c)(ii), infra.\nb. The Participation Ratio, as Reported in the CMS-416, is Inflated\nIt is initially noted that the Court has already visited the merits of the participation ratio as reported in the HCFA/CMS form 416. See Frew, 109 F.Supp.2d at 602-613. In 2000, the Court found that \"the reported participation ratios are inflated indicators of the actual participation rates among the plaintiff class.\"[34]Id. at 602. The Court reasoned that, because the participation ratio is adjusted for the average length of time that class members receive Medicaid during the reporting period, the reported participation ratios did not accurately reflect actual participation rates.[35]Id. For the reasons discussed in *644 the 2000 opinion, in addition to the reasons detailed below, the Court maintains that the CMS-416 participation ratio is an inflated indicator of actual participation rates among the plaintiff class and does not accurately reflect the Texas Health Steps program's overall performance. Because Defendants re-urge the argument that CMS-416 participation ratios accurately reflect actual participation rates among the class, which the Court rejected in 2000, the Court will again discuss the shortcomings of the participation ratio as reported on the CMS-416.\nDefendants' argument in support of using the CMS-416 participation ratio as the primary evaluation metric for Texas Health Steps is three-fold: (1) Defendants should not be held accountable for class members with short periods of Medicaid enrollment;[36] (2) participation rate calculations beyond the requirements of the CMS-416, such as those required by Consent Decree ถ 284, misrepresent the Texas Health Steps program's performance; and (3) even though CMS-416 participation ratios potentially understate Texas Health Steps' performance, because of its exclusion of class members with some form of medical insurance in addition to Medicaid, they still evidence significant improvement in the program. Defendants' Post-Hearing Brief at 18-20; Tr. Vol. VIII, pp. 79-82 (closing argument of Defendants' counsel); Tr. Vol. VI, p. 24 (testimony of Dr. Shenkman). Plaintiffs present two objections to evaluating the Texas Health Steps program based on the CMS-416 participation ratio: (1) the CMS-416 participation ratio is adjusted for the average length of time that class members receive Medicaid during the reporting period, thus inflating the reported statistic, and (2) the ratio includes data about children whose \"checkups\" are incomplete, further inflating the reported statistic. The Court addresses the parties' arguments in turn.\n\nThe Effect of Considering The Average Period of Eligibility\nIn order to evaluate the parties' respective arguments relating to discounting the denominator in the CMS-416 participation ratio to account for average periods of eligibility, the Court must first determine why the federal formula prescribes such a methodology. See D. Ex. 97 at 3. According to Dr. Bultman, \"[t]he federal calculations for the CMS-416 mandate the use of these formulas to assure states [sic] requirements are standardized, but also to assure meaningful and reasonable reporting requirements.\" D. Ex. 97 at 3. The Court accepts Dr. Bultman's opinion, to the extent that accounting for average periods of eligibility permits a general, standardized *645 State-to-State assessment.[37] As each State prescribes its own Medicaid eligibility requirements, the average period of eligibility may be drastically different from State to State. Disparate average periods of eligibility correspondingly affect the ability of various States to provide the services within their respective average periods of eligibility and, if not considered in the calculation of participation ratios, will skew State-to-State comparisons.[38] However, the Court finds that taking into account the average period of eligibility is unnecessary when assessing one State's participation ratio in isolation. Although removing this factor from the denominator will lower the calculated participation ratio, the entire Medicaid population is taken into account, rather than only a fraction, and the calculated participation ratio will provide additional information about the actual participation rate among the entire class. Neither method of participation ratio calculation, however, is an accurate reflection of the actual participation rate among the plaintiff class: the CMS-416 is under-inclusive and inflates the ratio, whereas inclusion of every Texas Health Steps member is over-inclusive, as the ratio would factor in class members who are either not due for a checkup or not enrolled in Texas Health Steps long enough to come due.[39]\n\nDefendants' 8.5% Estimate Overstates the Potential Effect of \"Other\" Insurance on CMS-416 Statistics\nDefendants argue, finally, that CMS-416 statistics regarding medical checkups and dental service utilization potentially understate the actual figures by as much as 8.5%. According to Piper Purcell's[40] calculations, *646 in fiscal year 2004, 8.5% of all class members under the age of 21 reported having some other form of medical insurance in addition to Medicaid. Tr. Vol. II, p. 212 (testimony of Piper Purcell). Defendants argue that this 8.5% of class members cause Texas' CMS-416 participation ratios to understate the number of class members receiving medical and dental services, because Medicaid is, by law, the payer of last resort. Put more simply, if a child is enrolled in Medicaid, and also has private insurance, the private insurer is billed and no record of the checkup is recorded for Medicaid purposes. Thus, argue Defendants, such a child may be enrolled in Medicaid and get a checkup, yet the checkup will not be reflected in the CMS-416 calculations. The result, Defendants contend, is that the 8.5% of class members who allegedly have other forms of insurance are not included in the participation ratio reported on the CMS-416. However, this 8.5% figure overstates the effect of \"other\" insurance, for at least three reasons: (1) it does not discount the figure based on average period of eligibility,[41] (2) it assumes that all children with private insurance in addition to Medicaid received the required checkups;[42] and (3) it does not clarify which portion of the 8.5% have other dental insurance, as opposed to other medical insurance.[43]\nDefendants' assertion, then, that \"the [CMS-416] participation rate potentially understates the number of children receiving checkups in the Texas Medicaid program by almost nine percent,\" Defendants' Post-Hearing Brief at 22, is grossly inaccurate. Based on the evidence presented, it is impossible to know what portion of the 8.5% of children with private insurance in addition to Medicaid, if any, actually received a medical checkup or dental service which was paid by private insurance and thus not included in the State's CMS-416 calculations. Furthermore, the 8.5% estimate must be discounted by the average period of eligibility, just as the total number of class members who should have received a checkup during the year is discounted. See discussion supra Part II(A)(2)(a). In conclusion, the Court declines to accept Defendants' flawed estimate of the alleged CMS-416 understatement due to class members' having \"other\" insurance.\n\nCMS-416 Participation Ratios Include Incomplete Checkups\nAs a further criticism of using CMS-416 participation ratios as a measure of the *647 Texas Health Steps program's overall performance, Plaintiffs clarify that a \"checkup\" for CMS-416 purposes is not necessarily a complete Texas Health Steps checkup. See Plaintiffs' Post-Hearing Brief at 44; cf. discussion infra Part III(C)(1).\nClass members receive checkups that are counted as checkups for CMS-416 purposes, and are thus factored into the CMS-416 participation ratio, although they may lack one or more requirements of a Texas Health Steps checkup, such as blood tests for lead poisoning or immunizations. See D. Ex. 141, Cross Question 3 (Deposition on written questions of Cynthia Ruff). Plaintiffs thus argue that CMS-416 participation ratios erroneously include checkups that should not be considered in an evaluation of the performance of Texas Health Steps. Defendants do not refute Plaintiffs' allegation that CMS-416 participation ratios include incomplete Texas Health Steps checkups. The Court thus finds that inclusion of incomplete Texas Health Steps checkups further inflates CMS-416 participation ratios; however, neither party presented evidence relating to the magnitude of the inclusions' effect. Because the burden of proof is on Defendants for purposes of their Rule 60(b) Motion, the Court considers the CMS-416 participation ratio's erroneous inclusion of incomplete checkups in its conclusions of law.\nc. Conclusions of Law: Medical Checkups\nBased on the findings of fact relating to the CMS-416, the Court arrives at the following conclusions of law with respect to medical checkups: (1) HCFA/CMS-416 participation ratios are not a reliable indicator of Texas Health Steps' overall performance, and (2) neither the increased participation ratios nor increased screening ratios, as reported on Texas' CMS-416s, constitute changed factual circumstances warranting dissolution of the Consent Decree, as demanded by Defendants. The Court's reasoning is detailed below.\n(i) CMS-416 Participation Ratios Are Not a Reliable Indicator of Texas Health Steps' Overall Performance\nFirst, as discussed at length in Part II(A)(2)(a) and (b), the CMS-416 participation ratio is not a reliable indicator of the Texas Health Steps program's overall success. It is unreliable as a sole indicator of Texas Health Steps' overall performance, since it inflates actual participation rates among the plaintiff class by considering average periods of eligibility and including incomplete checkups. See discussion supra Part II(A)(2)(b). Furthermore, though actual participation rates are among the most reliable indicators of the overall performance of Texas Health Steps, CMS-416 participation ratios are but one small indicator of the health of the program. Because the CMS-416 participation ratio formula excludes many class members who are due for a checkup, yet do not receive one, it does not paint a complete picture of Texas Health Steps' overall performance. These findings of fact, alone, substantiate the Court's conclusion that any increase in CMS-416 participation ratios, by itself, does not constitute significant changed circumstances warranting dissolution of the Consent Decree; however, to bolster this finding, the Court considers the statistics, as reported on the CMS-416, since entry of the Consent Decree.\n(ii) The Increase in CMS-416 Participation Ratios Does Not Constitute a Significant Changed Factual Circumstance\nEven assuming, arguendo, that CMS-416 participation ratios are a reliable indicator of the overall success of the Texas Health Steps program, the increase in *648 participation ratios since the entry of the Consent Decree does not constitute a significant changed factual circumstance warranting revision of the Consent Decree. See Rufo, 502 U.S. at 392, 112 S. Ct. 748. Defendants argue that Texas' CMS-416 participation rates have substantially increased since 1993, thus constituting significant changed circumstances warranting revision of the Consent Decree. Furthermore, argue Defendants, Texas' current CMS-416 participation rates rank in the top one-third of all reporting jurisdictions. D. Ex. 97 at 9. Plaintiffs, however, argue that the number of class members failing to receive medical checkups to which they are entitled has increased since entry of the Consent Decree; that Texas' participation rates, as reported on the CMS-416, have declined since 1998; and that Texas' CMS-416 participation ratio relative to other States' is an unreliable indicator of the Texas Health Steps program's performance. Chart A contains Texas' participation ratios, as reported on the CMS-416, from 1994 through 2004:[44]\n\n\nChart A: CMS-416 Participation Ratios (1994-2004)\n Year Participation Ratio\n 1994 .42\n 1995 .43\n 1996 .51\n 1997 .55\n 1998 .66\n 1999 .62\n 2000 .63\n 2001 .52\n 2002 .55\n 2003 .60\n 2004 .62\n\nThe Number of Class Members Receiving No Medical Checkups Has Consistently Increased Since Entry of the Consent Decree\nFirst, the Court declines to look at CMS-416 participation ratios in isolation. To evaluate the current state of Texas Health Steps and class members' utilization of EPSDT services, the Court must additionally consider actual numbers of class members receiving Texas Health Steps services. Percentages, alone, are only a small quadrant of the complete picture; the size of the plaintiff class has grown substantially and, regretfully, the number of class members receiving no checkups has correspondingly increased. While a comparison of Texas' CMS-416 for 1994 and that for 2004[45] reveals an increase in participation ratios from 42% to 62%, respectively, the number of class members who received no medical checkups also increased from 1994 to 2004-from at least 623,650 in 1994 to at least 764,233 in 2004.[46] D. Ex. 94; D Ex. 96. *649 Despite the increase in reported participation ratios since entry of the Consent Decree, on which Defendants rely to prove significant changed factual circumstances for the better, the number of class members who should have received services, but received none, has actually increased since entry of the Consent Decree.[47] The Court finds that Defendants' reliance on increased participation ratios to prove significant changed factual circumstances warranting dissolution of the Consent Decree is, therefore, misplaced.\nParticipation Ratios Do Not Evidence Significant Improvement in the Overall Performance of Texas Health Steps\nThe State's CMS-416 reported participation ratio increased from .42 in 1994 to .62 in 2004. D. Ex. 94; D. Ex. 96. In isolation, these snapshots appear to evidence significant changed factual circumstances; however, these two figures are only the first step in an analysis of significant changed circumstances based on CMS-416 participation ratios. Looking solely at the CMS-416, Defendants' participation rate has declined from .66 in 1998 to .62 in 2004. Id. The decline from 66% to 62% between 1998 and 2004 is particularly disturbing, since Defendants, through their Rule 60(b) Motion, are asserting that Texas Health Steps has taken giant strides forward in the years since the Consent Decree's entry, thus rendering the Consent Decree unnecessary in light of the program's success.[48] Any recent decline in CMS-416 participation ratio thus contradicts Defendants' perception of Texas Health Steps' overall performance and does not support a finding of significant changed factual circumstances. To determine what conclusions, if any, may be drawn from these data, including both the overall increase in Defendants' CMS-416 participation ratio since 1994 and the decrease in CMS-416 participation ratio since 1998, the Court must closely scrutinize the parties' arguments relating to the comparability of the HCFA/CMS-416 participation ratios for the years under examination.\nParadoxically, Defendants assert that the formula underlying the calculation of participation rates for purposes of the CMS-416 has changed twice-in 1999 and 2001-thus rendering pre โ€” and post-formula change calculations \"apples and oranges,\" respectively. See Defendants' Post-Hearing Brief at 23-24;[49] D. Ex. 97 *650 at 12-13. Defendants argue that, as a result, the only meaningful comparisons of CMS-416 participation ratios are from 2001 forward, taking into account the fact that the formula has remained constant since that time. See Defendants' Post-Hearing Brief at 24; D. Ex. 97. The Court is astonished by Defendants' audacious argument in this respect, because they are urging the Court to compare 1993 CMS-416 participation ratios to 2004 CMS-416 participation ratios as proof of the program's success, while simultaneously arguing that pre-2001 CMS-416 participation ratios cannot be meaningfully compared to post-2001 CMS-416 participation ratios.\nTaking Defendants' first argument, that the Court should look only to post-2001 CMS-416 participation ratios, the Court notes that Texas' reported participation rate increased from.52 in 2001 to .62 in 2004. D. Ex. 94; D. Ex. 96. The Court finds that a 10% increase in inflated participation rates between 2001 and 2004 is insufficient to prove significant changed circumstances warranting dissolution of the Consent Decree in its entirety. Furthermore, the number of class members failing to receive a checkup, using Defendants' preferred calculation, increased from 633,130 in 2001 to 764,233 in 2004. D. Ex. 94; D. Ex. 96. While the increase in CMS-416 participation ratio evidences increased Texas Health Steps success over the past four years, the Court finds that it does not constitute a significant changed factual circumstance.\nNext, Defendants, through Dr. Bultman, seemingly assert that the increase in participation ratios from .42 in 1994 to .62 in 2004 understates the actual increase in CMS-416 participation ratios, by reason of formula changes in 1999 and 2001. Defendants' argument thus implies that the increase in CMS-416 participation ratios since the entry of the Consent Decree is actually in excess of 20%. As Dr. Bultman explained: \"Both changes influenced the CMS Annualized State Periodicity Schedule (average number of screens that should be received each year for a specific age group) calculation . . . and, therefore, influenced the expected number of screenings and participants.\" D. Ex. 97 at 12. In further explication, Dr. Bultman testified that the 1999 and 2001 changes \"cause[d] both the Screening Ratio and Participation Ratio to decrease because the denominator used in the calculation increase[d].\" Id. at 14. Although Dr. Bultman's analysis implies that Texas' reported post-2001 participation ratios would have been higher without the formula changes, since the denominator in the equation would be lower absent the formula changes, neither she nor Defendants provided an estimate of the magnitude of the changes' impact on reported participation rates. While the Court finds Dr. Bultman's assessment of the changes' impact on participation rates credible and accurate, the magnitude of the effect remains unaddressed. As Defendants have failed to offer definitive proof in this respect, the Court finds that CMS-416 participation ratios from 1994 through 2004 are roughly comparable. As already discussed, though a 20% increase in CMS-416 participation ratio evidences a substantial increase in Texas Health Steps' performance, the number of class members failing to receive checkups for which they were due has increased over the same period of time. Thus, the Court finds that the increase in CMS-416 participation ratio does not constitute a significant changed factual circumstance warranting modification of the Consent Decree. See Rufo, 502 U.S. at 392, 112 S. Ct. 748.\n*651 Finally, Defendants argue that Texas' reported medical screening participation ratio for 2004 placed the State in the top one-third of all reporting jurisdictions, thus evidencing the success of the Texas Health Steps program. D. Ex. 97. Furthermore, argue Defendants, the State's rigid adherence to the CMS-416 reporting rules and the higher standards that Texas has set for itself (e.g., the periodicity schedule requiring 26 screens for children aged 0-21 years) render Texas' ranking even more impressive. The Court declines to accept Texas' CMS-416 performance relative to other States' as proof of the success of the program. First, as previously discussed, CMS-416 participation ratios are not a reliable indicator of the success of the Texas Health Steps program. Second, as Dr. Bultman explained in her expert report, there are numerous ways a State can manipulate the ratios required by the CMS-416.[50] As the Court finds that Texas' CMS-416 ratios, alone, are not reliable indicia of the success of the Texas Health Steps program, it similarly finds that comparing this unreliable ratio to ratios of other States, which may easily manipulate their ratios, is similarly inappropriate.\nFurthermore, the Court finds that the increase in inflated, manipulable reported screening ratios from 48% in 1994 to 75% in 2004 does not constitute significant changed factual circumstances warranting dissolution of the Consent Decree. See D. Ex. 94, 96, 97. While the increased screening ratio evidences improvement in utilization of medical screening services, it is insufficient to satisfy Rufo's requirement for modification of a consent decree.\nAfter careful consideration of the parties' arguments in this regard, the Court finds that the CMS-416 participation and screening ratios have improved substantially since, and perhaps because of, the entry of the Consent Decree. See Shapp, 602 F.2d at 1120 (\"[T]he decree continues in force most of the provisions . . . which have produced one of the most successful EPSDT programs in the country.\"). While Defendants' CMS-416 participation ratio has increased by approximately 20% since entry of the Consent Decree, it has declined since 1998 (from .66 to .62). D. Ex. 94; D. Ex. 96. Defendants' reliance on these statistics to prove significant changed factual circumstances warranting revision of the Consent Decree, is misplaced and is, accordingly, rejected. Defendants have also failed to present evidence that these alleged changes in factual circumstances \"affect[s] compliance with, or the workability or enforcement of, the final judgment [or] show that those changes occurred despite [Defendants'] reasonable efforts to comply with the [Consent Decree],\" thus further failing to satisfy the Rufo/Cooper Rule 60(b) standard for consent decree modification. 502 U.S. at 384, 112 S. Ct. 748, 33 F.3d at 544.\n3. Defendants Have Failed to Meet Their Burden With Respect to Consent Decree ถถ 171 and 284\nDr. Bultman, Defendants' expert witness, testified that it is not possible to provide the information required by Consent Decree ถถ 171[51] and 284[52] in any *652 meaningful fashion other than what presently appears on the State's annual CMS-416.[53] Tr. Vol. III, pp. 203-06 (testimony of Dr. Bultman). As she explained, if Defendants count all of the medical and dental checkups but are not permitted to use the calculations mandated by the CMS-416-which take into account the average period of eligibility for each age group-any resulting numbers will \"grossly misrepresent\" Defendants' efforts in providing Plaintiffs access to services. Id.; Tr. Vol. IV, pp. 20-22 (testimony of Dr. Bultman). As briefly discussed in Part II(A)(2)(b), the Court rejects this argument, as non-CMS-416 statistics do not misrepresent participation ratios any more so than CMS-416 participation ratios. Additionally, Dr. Bultman asserts that, because children are not uniformly Medicaid eligible for the entire year, each individual child will likely have a unique schedule of EPSDT examinations, and compilation of the data would be time consuming and costly. D. Ex. 99.\nThe Court next addresses the merits of Defendants' arguments, in order to determine whether Defendants have satisfied Rufo's and Cooper's requirements for modification of consent decree provisions. First, Defendants' arguments fail to recognize the purpose of the statistics required by Consent Decree ถถ 171 and 284. Plaintiffs do not contend, and the Court is not under the impression, that the statistics required by paragraphs 171 and 284 would serve to replace those reflected in the CMS-416 or serve as an indicator of the overall success of the State's program. Instead, they would merely supplement the CMS-416 participation ratio and provide additional, different information about the program's efficacy and provide Plaintiffs with some idea of the utilization level of all of those enrolled in Medicaid.[54] Instead of providing misleading *653 data, it would provide the only data with respect to the class members excluded by the CMS-416 calculations. The additional statistics would thus be \"meaningful\" indicators of Texas Health Steps' performance and would not \"grossly misrepresent\" participation rates.[55] The lens through which such statistics should be viewed will take any shortcomings into account in their interpretation.\nConsent Decree ถถ 171 and 284 were drafted with the federal CMS-416 requirements in mind. See 42 U.S.C. ง 1396a(a)(43)(D). As a result, all parties knew that the mandatory, enforceable obligations enumerated in Paragraphs 171 and 284 go beyond the minimum requirements of federal law. Defendants' argument with respect to the statistics required by paragraphs 171 and 284 of the Consent Decree is thus not related to any changed circumstances, as required by Rule 60(b)(5); rather, it relates to whether Defendants, unilaterally, find their requirements useful or cost effective. However, Defendants cannot simply choose which Consent Decree provisions they deem cost effective and useful nearly ten years after the Consent Decree was entered.\nDr. Bultman also opined that providing the information in the form described in Consent Decree ถถ 171 and 284 would not be fiscally responsible, nor would it be a good expenditure of public funds, to spend the time required to generate the reports for these two Consent Decree paragraphs.[56] Tr. Vol. III, pp. 204, 206 (testimony of Dr. Bultman). However, Defendants provided no cost estimates on which the Court could base a determination that such provisions are fiscally irresponsible or that the provisions would require Defendants to divert a substantial amount of resources from other parts of the Texas Health Steps program. Defendants presented no evidence regarding changed circumstances with respect to compiling the data required by Consent Decree ถถ 171 and 284; the Court finds that Defendants have proved neither significant changed circumstances, nor that the alleged difficulties of compiling this data, and Defendants' sentiments regarding its necessity, did not exist when the Consent Decree was entered. The Court thus finds that Defendants' current views with respect to these Consent Decree provisions do not make compliance with the Consent Decree substantially more onerous than when it was entered, make the provisions unworkable because of unforeseen obstacles, or cause enforcement of the Consent Decree to be detrimental to the public interest. See Rufo, 502 U.S. at 384, 112 S. Ct. 748.\nFurthermore, Defendants show their unilateral disregard for Consent Decree *654 provisions by asserting that gathering and collecting data other than that which is federally required is a \"needless expense.\" See Defendants' Post-Hearing Brief at 22; see also Tr. Vol. VIII, p. 87 (closing argument of Defendants' counsel) (\"[T]hey will be meaningless numbers.\"). Defendants, however, fail to recognize that not gathering and reporting the data required by the Consent Decree is potentially an even greater expense, as it exposes the State to equitable sanctions for willful violation of Consent Decree provisions.[57] Unless and until the Court grants a Rule 60(b) motion to modify or dissolve the decree, the obligations contained in the Consent Decree are binding and enforceable, and Defendants may not choose to disregard them after unilaterally determining that a provision is unnecessary or undesirable. Furthermore, Defendants' desire, or lack thereof, to compile the data is not relevant in the Court's Rufo analysis; instead, Defendants must prove that changed factual circumstances-since they voluntarily agreed to compile the data-make compliance with the Consent Decree substantially more onerous, render certain provisions unworkable or cause enforcement to be detrimental to the public interest. See Rufo, 502 U.S. at 384, 112 S. Ct. 748; Cooper, 33 F.3d at 544. Defendants have not satisfied this burden.\n4. Dental Services\nDefendants argue that a significant increase in dental participation ratios, in addition to Texas' exemplary provision of dental services relative to other States', proves significant changed factual circumstances warranting modification of the Consent Decree. As in 2000, and similar to their CMS-416 participation ratio argument, Plaintiffs argue that relative comparisons to other States are irrelevant in determining whether Defendants are in compliance with the Consent Decree. See Frew, 109 F.Supp.2d at 603. Furthermore, Plaintiffs' argument is misplaced with respect to Defendants' Rule 60(b) motion. Because Defendants are not arguing that they are in compliance with the Consent Decree, but rather that the program is so successful as to render the Consent Decree unnecessary, compliance with the Consent Decree is not in issue with respect to changed factual circumstances.[58] Plaintiffs further argue that class members' access to dentists is hampered by Defendants' failure to enroll sufficient numbers of dentists in Texas Health Steps.\na. Defendants Manipulate Texas' Relative Ranking\nDefendants' primary argument with respect to provision of dental services is that Texas' dental participation rate, which in 1993 was as low as 14%, improved to 45% for 2004, making Texas' dental participation rate the second best in the nation. D. Ex. 97 at 10. However, both Defendants' temporal comparison and relative rankings are fatally flawed and lack merit; therefore, they are rejected.[59]\n*655 First, Table 3, contained in D. Ex. 97, prepared by Dr. Shenkman, calculates dental participation ratios \"for all states as if they followed the Texas eligibility, in which children become eligible for checkup services at age one.\" D. Ex. 97 at 7. \"It should be noted that state Medicaid policy sets the age at which dental services begin, and some states begin dental eligibility at age three (3). Actual dental Participation Ratios for those states would be understated in Table 3, which uses age 1(one).\" Id. Table 3 thus ranks all States based on Texas' Medicaid policy and provides no meaningful comparison among States.[60] In other words, instead of determining Texas' relative rank with respect to provision of dental services based on each State's dental eligibility requirements, Defendants calculate dental participation ratios based on Texas' eligibility requirements. As a result, other States' dental participation ratios, in the chart prepared by Dr. Bultman, are understated if eligibility for dental services begins after age one. D. Ex. 97 at 7. Defendants do not explain which States begin eligibility at age three or by how much those States' participation ratios are understated as a result of Dr. Shenkman's manipulations. The Court declines to find that Texas ranks in the top two States with respect to provision of dental services and finds that Dr. Shenkman's Table 3 is misleading and inaccurate. Defendants offered no other meaningful relative comparisons; thus, Defendants' argument that Texas' provision of dental services is exemplary compared to other States' is without support and, accordingly, is rejected.\nb. Dental Participation Ratio\nThe Court now turns to Defendants' argument that the dental participation ratio, which in 1993 was as low as 14%, improved to 45% for 2004.[61] First, as the parties proposed the Consent Decree to the Court in 1995, data from 1994 most accurately reflects the state of Texas Health Steps at the time of the Consent Decree's entry.[62]See supra n. 45. In 1994, the class size was 1,390,857, and 344,535 class members received dental assessments; thus, roughly *656 25% of class members received dental assessments.[63] D. Ex. 94. In 2004, the class size had increased to 2,706,903, and \"total eligibles receiving preventive dental treatment services\" was 999,387; thus, roughly 37% of class members received preventive dental care. D. Ex. 96. Also in 2004, however, 1,142,966 class members received \"any dental services.\" D. Ex. 96. While the number of class members receiving \"any dental services\" in 2004 constitutes 42.2% of the number of class members eligible for EPSDT services (presumably the statistic Defendants used in their calculation resulting in a professed 45% dental participation rate), it is misleading to compare this number to the exclusively preventive dental statistic reported in 1994. In other words, the most accurate comparison between1994 and 2004 shows that provision of preventive dental services increased from 25% to 37%. Defendants' argument, then, that dental participation rate increased from 14% to 45%, is flawed in two respects: (1) it compares 1993[64] to 2004, rather than 1994 to 2004, and (2) it compares statistics measuring different types of dental services, thus comparing \"apples to oranges.\" The Court finds the increase in CMS-416 dental figures from 25% to 37% (comparing relevant years and statistics measuring provision of similar services) insufficient to prove significant changed factual circumstances with respect to provision of dental services warranting dissolution of the Consent Decree. See Rufo, 502 U.S. at 392, 112 S. Ct. 748.\nc. Defendants' Provision of Dental Services Has Not Otherwise Significantly Improved\nIn addition to failing to prove significant changed circumstances warranting revision of the Consent Decree via dental participation ratios or Texas' dental program performance relative to other States', Defendants have failed to prove any other significant factual changes warranting revision of the Consent Decree with respect to Texas Health Steps' dental program. Plaintiffs presented substantial reliable evidence of other shortcomings in Defendants' dental program, the most significant of which is detailed below.\nIn 2000, the Court expressed concern about the severe, statewide shortage of dentists available to see class members; the number of active dentists who saw at least one class member was less than 1,600. See Frew, 109 F.Supp.2d at 604. As of the first quarter of 2005, only 1,539 active dentists were enrolled with Texas Health Steps. P.Ex. DEN-11. According to Dr. Seale, \"we're going backwards; we're losing providers and increasing numbers of patients.\" Tr. Vol. VI, p. 92 (testimony of Dr. Seale). This stagnation in numbers of active dentists is exacerbated when viewed in conjunction with the increasing *657 number of class members. In the last quarter of 2004, 1,517 active dentists were enrolled in Texas Health Steps. P.Ex. DEN-11. During that time, there were also 2,458,671 class members over the age of 12 months. D. Ex. 96. For each class member to receive dental care, then, every active dentists would have had to take care of 1,621 children with Medicaid. However, in 2004, only 223 of the 1,517 active dentists took care of more than 1,500 class members. P.Ex. I-1; Tr. Vol. VII, p. 154 (testimony of Dietmar Kennel).\nDefendants have enrolled less than 20% of Texas' roughly 8,000 dentists to care for class members. Tr. Vol. VII, p. 154 (testimony of Dietmar Kennel). Dr. Seale testified that the most important change needed to increase class members' utilization of dental care is \"more providers, because I don't care how much we teach [families] about what they need to have done, if there's no one who will see them . . . [children are] . . . not going to get the care.\" Tr. Vol. VI, pp. 90-91 (testimony of Dr. Seale). Plaintiffs offer several explanations for low provider participation in Defendants' dental program, including low payment rates and the administrative burdens of being reimbursed by Texas Health Steps. See Kennedy Deposition at ถ 32. Defendants respond that there is an insufficient number of pediatric dentists in Texas to provide the majority of dental care to children, regardless of what kind of insurance the children have. Tr. Vol. VI, p. 79 (testimony of Dr. Seale).\nDefendants also respond that, despite the increase in the number of active dentists, the active dentists' capacity to care for class members has increased. If this argument is meritorious, the relatively constant total number of dentists enrolled in the program is seemingly irrelevant; so long as capacity has increased, the number of children able to be served by Texas Health Steps dentists has increased. Plaintiffs argue that the actual increase in the number of \"high volume dentists\" is only 69, from 1,105 in 2000 to 1,174 in 2004. P.Ex. DEN-11. Defendants argue that, from 2000 to 2004, Defendants \"gained a capacity to serve about 240,000 patients because of the increase in high volume providers.\" Tr. Vol. VI, p. 115 (testimony of Nancy Seale). However, the size of the class eligible for dental services increased by roughly 810,000 during the same time period, so even assuming, arguendo, that Defendants' calculations are correct, the state of Texas Health Steps dental services is more dismal than the Court found in 2000, as class growth has exceeded the growth of Defendants' capacity to serve class members. Id.; see D. Ex. 94; D. Ex. 96; Frew, 109 F.Supp.2d at 603-04.\nBased on an insignificant increase in dental participation ratios, the Court's rejection of Defendants' manipulated relative State-to-State dental participation ratios and a lack of convincing evidence that Defendants have cured the shortage of dentists found in 2000, the Court finds that no significant changed factual circumstances warranting dissolution of the Consent Decree exist with respect to Defendants' dental program. See Rufo, 502 U.S. at 392, 112 S. Ct. 748.\nB. OUTREACH\nAs additional proof of the Texas Health Steps program's overall success, Defendants presented substantial evidence regarding Maximus, the company with which Defendants contracts to provide outreach and informing services. While Defendants do not purport to argue that Maximus' outreach and informing efforts, alone, justify dissolution of the Consent *658 Decree in its entirety,[65] they proffer evidence of Maximus' efforts to show that Defendants, through Maximus, have made significant progress with respect to their outreach and informing efforts. Substantial progress has seemingly been made, although the results of this progress have yet to be fully realized. The Court begins by briefly summarizing its 2000 findings with respect to Defendants' outreach and informing efforts, then analyzes the evidence presented at the June Hearing in the process of determining that Defendants have presented insufficient evidence to prove significant changed factual circumstances warranting dissolution of the Consent Decree. Defendants failed to offer evidence of their past outreach and informing efforts; instead, their presentation consisted chiefly of a Maximus representative describing its policies and exhibiting its outreach materials. Furthermore, Defendants have failed to show how any alleged changed circumstances \"make [the Consent Decree] unworkable, make compliance substantially more onerous or make enforcement detrimental to the public interest.\" Cooper, 33 F.3d at 544; see Rufo, 502 U.S. at 384, 112 S. Ct. 748. Instead, it appears that Defendants, through their contract with Maximus, have successfully incorporated Consent Decree requirements into their outreach and informing plan, which have certainly aided its performance in recent years.\n\n2000 Findings\nIt is, initially, noted that the Court found Defendants to be in violation of Consent Decree ถถ 32 and 52, relating to outreach, in its 2000 opinion. Frew, 109 F.Supp.2d at 599. The Court found that the degree to which class members lacked knowledge regarding the Texas Health Steps program, in addition to low participation rates, minimal receipt of services after oral outreach, and insufficient staffing, prevented Defendants' outreach and informing efforts from being effective, as required by the Consent Decree. Id.; Consent Decree ถถ 32, 52. In contrast to the Court's 2000 inquiry, however, the Court is not currently determining whether Defendants are in compliance with the Consent Decree or whether Defendants' current outreach and informing efforts are effective;[66] rather, the Court must determine whether any progress in Defendants' outreach and informing efforts constitutes significant changed factual circumstances warranting modification of the Consent Decree. Cf. Frew, 109 F.Supp.2d at 594 (\"[I]t is by no means clear that defendants' progress is at issue, as the decree does not require progress in these areas.\"); see Rufo, 502 U.S. at 391, 112 S. Ct. 748. The Court, below, details the current state of Defendants' outreach and informing efforts.\n1. Maximus Outreach and Informing\nSince the 2000 Opinion, Defendants, through Maximus, have drastically revamped their outreach and informing efforts. Defendants first contracted with Maximus for outreach and informing in the fall of 1999.[67] Tr. Vol. I, p. 95 (testimony *659 of Melinda Metteauer). During the 2000 Hearing, however, the Court noted that it was still too soon to evaluate Maximus' performance. Frew, 109 F.Supp.2d at 594, n. 19. The parties presented ample evidence at the June Hearing to evaluate the results of Maximus' outreach and informing efforts since 1999.\nMaximus is a government consulting and contracting organization that currently contracts with the State of Texas to conduct Texas Health Steps-related outreach and informing, in addition to enrollment brokering services. See D. Ex. 20. Maximus provides outreach and informing services to Medicaid families with children younger than age 21, to inform them about Texas Health Steps and to assist them in accessing Texas Health Steps services. See Tr. Vol. I, p. 16 (testimony of Melinda Metteauer); D. Ex. 19; D. Ex. 20. Maximus receives $16 million annually from the State of Texas for its outreach and informing efforts. Tr. Vol. I, p. 29 (testimony of Melinda Metteauer). It employs 197 outreach workers statewide, a far cry from about 10 total Texas Health Steps employees and contract workers in 1993. Tr. Vol. III, p. 18 (testimony of Melinda Metteauer); see Frazar, 300 F.3d at 533. In its capacity as enrollment broker, on the other hand, Maximus serves as an independent third party that provides information to those who are eligible for Medicaid managed care regarding the picking of a plan and enrolling in managed care in Texas.[68] Tr. Vol. I, p. 21 (testimony of Melinda Metteauer). Maximus performs outreach and informing services throughout all of Texas, while it performs enrollment brokering services for only those regions under managed care.\nMaximus' project design for outreach and informing focuses on telephone contact, mail-outs, and in-home visits.[69] Maximus receives lists of EPSDT-eligible individuals *660 from Defendants on a weekly basis and, pursuant to its contract with Defendants, Maximus has 60 days to make contact with each of the individuals on these lists. Tr. Vol. I, pp. 32-35, 56 (testimony of Melinda Metteauer). The first stage in Maximus' outreach and informing effort entails efforts by call center staff to reach the listed EPSDT-eligible individuals by telephone. See D. Ex. 145 at 3 (testimony of Lyn Garcia). Maximus has a call center located in Austin and nine regional service areas, staffed by field outreach workers, to perform this outreach function.[70] Tr. Vol. I, pp. 133 (testimony of Melinda Metteauer); D. Ex. 19. By the end of the first week of this telephone effort, eligibles who either have no telephone or for whom the listed telephone numbers are incorrect or non-working are identified, and this information is provided to Maximus regional staff. The regional staff members then begin efforts to identify phone numbers and/or addresses for these individuals. Tr. Vol. I, p. 35 (testimony of Melinda Metteauer); D. Ex. 19. The eligibles who have still not been reached by phone or mail by day 45 are then designated for home visits by Maximus regional outreach staff members. Tr. Vol. I, p. 40 (testimony of Melinda Metteauer). Maximus also sends out various forms of letters and information to class members after the initial outreach contact. See D. Ex. 22. These mailings inform class members of program services and include periodic newsletters, letters to nonparticipants, letters to pregnant women, and letters to foster children. Tr. Vol. I, pp. 74-75 (testimony of Melinda Metteauer).\nPlaintiffs' and Defendants' disagreements with respect to evidence relating to outreach and informing involve each of the three areas of Maximus' outreach and informing project design: telephone contact, mail-outs, and in-home visits. Plaintiffs do not dispute Defendants' description of Maximus' outreach and informing plan; rather, they argue that the process has not produced significantly better results than past outreach and informing efforts. In addition to looking at the process Defendants choose to employ and determining whether their methods have significantly changed since the Decree was entered, the Court looks to the outcome of that process to determine whether significant changed factual circumstances warranting modification of the Consent Decree exist-e.g., the number of successful outreach contacts and whether information has been conveyed successfully.\nMaximus compiles monthly data relating to its outreach efforts, including statistics for its call center and statistics for various forms of EPSDT client outreach. See D. Ex. 23. Plaintiffs argue that neither Maximus' efforts via telephone, mail-out, nor in-home visits constitute significant changed factual circumstances warranting modification of the Consent Decree. Defendants argue that the rise in annual contacts in each of these categories evidences significant changed factual circumstances.\n\nTelephone Contacts\nWhile the number of total outbound calls and number of total completed calls decreased from 2003-04, as Plaintiffs argue, the general trend since entry of the Consent Decree indicates increasing numbers *661 in each category. See D. Ex. 23. But, the rate of increase in numbers of calls placed and numbers of calls completed since 2000 is similar to the rate of increase in class size. Total outgoing calls increased from 396,358 in 2000 to 573,972 in 2004, while total calls completed increased from 272,367 in 2000 to 452,779 in 2004. D. Ex. 23 at 2. Total number of class members increased from 1,738,991 in 2000 to 2,706,903 in 2004. D. Ex. 94; D. Ex. 96. In other words, Maximus completed calls to approximately 16% of the class in 2000, while it completed calls to approximately 17% of the class in 2004. The increase in completed calls thus grew proportionately with the class and does not constitute a significant changed factual circumstance.\nMaximus makes roughly 50,000 outbound phone calls per month for purposes of conducting outreach to program recipients and informing them of program services, combining both predictive-dialer technology[71] and manual dialing methods. Tr. Vol. I, pp. 49-50 (testimony of Melinda Metteauer); D. Ex. 23. However, this raw number of predictive-dialer technology calls is misleading, as extremely small percentages of predictive-dialer calls are actually completed.[72]See D. Ex. 24. Plaintiffs argue that this low predictive-dialer completion rate is at least partly explained by Maximus' employing insufficient staff to both handle its inbound calls and maximize the efficiency of the predictive dialer technology.[73] Tr. Vol. I, p. 146 (testimony of Melinda Metteauer). While the Court agrees that predictive-dialer efficiency is compromised by Maximus' staffing decisions, it does not necessarily follow that existing staff numbers are insufficient. Nor does it follow that numbers of outgoing calls are reliable indicators of the success of Defendants' outreach and informing efforts; instead, the Court relies on numbers of completed calls to aid its determination of whether significant changed factual circumstances exist.\nTotal calls received has also slowly increased, from 294,241 in 2000 to 495,500 in 2004.[74] D. Ex. 23. These data are relevant to the instant Rule 60(b) Motion because, for example, an increase in calls *662 received may evidence increased provision of information about who to call with questions about Texas Health Steps. Nevertheless, the corresponding increase in class size by more than 1,000,000 children between 2000 and 2004 renders this increase in class members' incoming calls insufficient to constitute significant changed factual circumstances warranting dissolution of the Consent Decree. Also with respect to incoming calls, the Court finds that Maximus' toll-free number's \"abandonment rate\" and \"average wait in queue\" have not been significantly reduced since 2000.[75]\nDefendants' outreach calls, on the other hand, increased from 442,037 in 2000 to 2,053,400 in 2004. D. Ex. 23. In percentage terms, Maximus' outreach calls totaled 25% of the total number of class members in 2000, whereas they totaled 76% of class members in 2004. The Court finds that this aspect of Maximus' outreach and informing effort experienced significant changed factual circumstances. Nonetheless, Defendants do not direct the Court to, and the Court does not sua sponte find, any specific Consent Decree provision wanting modification as a result of this change. Furthermore, Defendants have failed to show how this changed circumstance affect compliance with, or the workability or enforcement of, the final judgment, or that those changes occurred despite the county officials' reasonable efforts to comply with the judgment. See Cooper, 33 F.3d at 544; Rufo, 502 U.S. at 392, 112 S. Ct. 748.\n\nMail-Outs and Materials Distribution\nIn 2000, Maximus mailed 358,301 letters; in 2004, it mailed 465,637 letters. D. Ex. 23. Again, with an increase in class size of approximately 1,000,000 between these years, an increase of approximately 100,000 letters is insufficient to prove significant changed factual circumstances. In 2000, Maximus mailed letters to approximately 20% of the class, whereas in 2004, Maximus mailed letters to approximately 17%. D. Ex. 23: D. Ex. 94; D. Ex. 96.\nThe number of materials distributed in connection with Maximus' EPSDT community outreach has declined since Maximus began tracking this statistic. In 2001, the first year for which Maximus compiled data for \"Number of Materials Distributed,\" it distributed 6,032,034 materials; in 2004, it distributed 4,630,380. D. Ex. 23. This decrease fails to support Defendants' assertion that Maximus' efforts have met with substantial success since 1999.\n\nIn-Home Visits\nFinally, Defendants dispute Plaintiffs' assertion that decreasing numbers of in-home visits reflect the declining quality of Defendants' outreach efforts. Defendants insist that in-home visits are ineffective and that resources are more wisely allocated to other forms of outreach. The Court notes that neither federal law nor the Consent Decree mandate a specific number of in-home visits that Defendants must perform.[76]\n*663 Defendants argue that \"[u]nsolicited in-home visits are not an effective way to conduct outreach and informing activities. Experience has shown that these visits are not always productive.\" Defendants' Post-Hearing Brief at 17. To accept Defendants' logic with respect to the efficacy of in-home visits based on a few complaints, though, would be akin to accepting the testimony of a handful of parents with children in the plaintiff class as dispositive of the overall quality of Texas Health Steps. While the isolated experiences of some workers illuminate some of the obstacles and dangers inherent within in-home visits, they are not convincing proof that in-home visits should be eliminated. Indeed, if the fact that in-home visits \"are not always productive\" is sufficient to warrant eliminating them from the State's outreach plan, all facets of Defendants' outreach plan are vulnerable to elimination.\nFrank Moore, Ph.D., disagrees with Defendants' assessment of the effectiveness of in-home visits.[77] Dr. Moore testified that current research indicates that \"a more active engagement with families to assist them in problem solving to strengthen that family's capacity is . . . important, it is effective, and, indeed . . . for many families . . . that is an essential requirement for them to be able to participate\" in Texas Health Steps. Tr. Vol. IV, p. 35 (testimony of Dr. Moore). He testified that face-to-face visits\nafford the opportunity to all parties to explore the barriers in some detail and, more importantly, to begin to assist the family in understanding what resources are available to them to deal with those barriers. . . . It is entirely likely that each family will present a unique set of constraints, barriers, and in order to individualize the help necessary for that family, it's really most effectively done face-to-face.\nTr. Vol. IV, p. 56 (testimony of Dr. Moore). The Court continues to agree with Dr. Moore that in-home visits are effective and, indeed, essential for some class members. See Frew, 109 F.Supp.2d at 593 (\"Although the decree does not mandate that a certain proportion of defendants' outreach contacts be home visits, it is found that defendants are not adequately availing themselves of the opportunity to use one of the most effective means of outreach.\").\n*664 Despite arguing that they are an ineffective means of conducting outreach, however, Defendants take pride in the alleged formidability of Maximus' numerous in-home visits. Defendants argue that Maximus has made at least 1,011,878 home visits since 2000, for purposes of conducting outreach and informing activities. D. Ex. 23 at 2. Defendants extoll a five-year sum of in-home visits, which is irrelevant to prove changed circumstances. The Court is unimpressed with numbers reaching into the millions; with over 2.7 million class members in 2004, all of Defendants' services should be provided to millions of class members. Significant changed circumstances with respect to Defendants' outreach and informing efforts is, instead, the relevant inquiry. Despite an increase of 967,912 class members between 2000 and 2004, the number of in-home visits increased by only 28,930 during the same years. D. Ex. 23 at 2; D. Ex. 94; D. Ex. 96. Thus, the percentage of class members receiving in-home visits decreased from 6.2% in 2000 to 5% in 2004. While the Court does not find this to be a significant changed factual circumstance for the worse, it certainly does not aid Defendants' argument that Maximus' outreach and informing efforts have resulted in significant changed factual circumstances for the better.\n2. STAR MCO Outreach and Informing\nA separate and distinct part of Defendants' outreach and informing effort consists of that provided by Defendants' STAR MCOs. Defendants argue that Maximus' outreach and informing efforts, combined with Defendants' STAR MCOs' efforts, adequately inform and encourage class members to utilize Texas Health Steps services, thus constituting a significant change in factual circumstances warranting dissolution of the Consent Decree. While Dr. Moore testified that STAR MCOs' redundancy does not improve outreach effectiveness, because it suffers from the same defects as Maximus' efforts,[78] Defendants argue the supplementation, nonetheless, enhances the outreach and informing services that Plaintiffs receive, as the number of telephone calls, mail-outs, and in-home visits increase in managed care areas.\nWhile the Court accepts Defendants' argument that STAR MCOs' outreach and informing efforts supplement Maximus' efforts to some extent, Defendants have failed to present evidence regarding how many STAR MCO calls, mail-outs, or in-home visits reach class members not also reached by Maximus; Defendants have also failed to present evidence establishing that STAR MCOs have access to any information not also accessible by Maximus. Because the STAR MCOs and Maximus are likely working from similar lists, containing identical contact information, the most reasonable assumption is that class members easily contacted via telephone or mail-outs will be contacted by both Maximus and Defendants' STAR MCOs. In other words, Defendants have failed to establish the amount of duplicated outreach efforts or otherwise prove that Maximus' and STAR MCOs' efforts reach different members. Accordingly, the Court bases its conclusions of law with respect to outreach and informing efforts primarily on its findings of fact respecting Maximus' outreach and informing efforts.\n*665 3. Confusion Regarding Texas Health Steps Services\nIn addition to rebutting Defendants' statistical evidence regarding the degree of success of Defendants' outreach and informing efforts, Plaintiffs presented extensive credible anecdotal evidence detailing mass confusion among class members about the services offered by, and utilization process for, Texas Health Steps. While this anecdotal evidence, alone, is not dispositive of the state of Defendants' outreach and informing efforts, the Court finds that it illuminates the confusion among class members with respect to Texas Health Steps services and supports the Court's conclusion that outreach and informing efforts have not significantly improved. Despite Maximus' and STAR MCOs' outreach and informing efforts, Plaintiffs argue, class members and their families continue to be confused about basic aspects of Texas Health Steps, such as Medicaid benefits and medical and dental checkups. See Frew, 109 F.Supp.2d at 590-94 (detailing, as of 2000, class members' confusion with respect to the Texas Health Steps program).\nSome class members have never heard of Texas Health Steps, even after registering their children for Medicaid. See Lloyd Deposition at 9. As a result of this confusion regarding the programs, many class members are unaware of the basic services they could receive or how to obtain those services. Evidence from health care providers supports the conclusion that class members and their families are ill-informed regarding Texas Health Steps and available services. Because many patients do not have even a basic knowledge of the program, one health care provider said she must explain the program to families \"as if they've never heard it before.\" Lloyd Deposition at 9. This confusion results in a lack of understanding among parents regarding the benefits of early and essential care such as checkups or immunizations. Id. For example, in Harris County, \"parents do not know what their children are entitled to through the Medicaid program. They don't know as a rule when . . . checkups are due. . . . This is typically true even if the child has had Medicaid for a long time. Parents typically do not know anything about the benefits of preventative care . . . even if the child has been on Medicaid for years.\" Misek Deposition at 2; see also Fette Deposition at 5 (Denton area); James Deposition at 4 (Dallas area).\nPlaintiffs further offered credible evidence that mass confusion exists among class members with respect to dental services available through Texas Health Steps and procedure to access those services. Class members, Plaintiffs argue, do not understand the concept of preventive dental care or even that dental care is covered by Texas Health Steps. Tr. Vol. VII, p. 150 (testimony of Dietmar Kennel). Many parents are simply \"not aware that dental care is a covered benefit for their children.\" Prachyl Deposition at 16. Approximately 60% of families are not aware that Medicaid covers dental care. Tr. Vol. VII, p. 184 (testimony of Karen Clemmer). Lacking awareness of this basic dental coverage, many children on Medicaid never visit a dentist. Prachyl Deposition at 16. The Court finds that the plaintiff class remains largely confused about basic aspects of Texas Health Steps, such as Medicaid benefits and medical and dental checkups, in addition to how to access Texas Health Steps services.\n4. Conclusions of Law: Outreach\nWhile Maximus' outreach and informing plan and Defendants' $16 million annual expenditure are impressive and certainly contribute to Defendants' progress with respect to outreach and informing, they do *666 not prove widespread success or effectiveness of Maximus' outreach and informing efforts.[79] Similarly, though Maximus' outreach materials are seemingly well-crafted, easy to understand and contain useful information, their existence does not prove significant changed factual circumstances. To be effective, these materials must actually reach class members, and/or Maximus employees must actually speak voice-to-voice or face-to-face with class members. The Court finds that Maximus has a noteworthy outreach and informing plan in place, although the recency of its establishment has seemingly prevented realization of its effects as of the June Hearing.\nAs discussed in Part II(A), the Court finds the CMS-416 participation ratio and dental participation ratios presented at the June Hearing evidence neither class members' improved utilization of Texas Health Steps services nor significant success of Defendants' outreach and informing efforts. The Court finds that much of the evidence of Defendants' improved outreach and informing efforts is undermined by this lack of improvement in actual provision of medical checkups and dental services, as detailed in Part II(A). Cf. Frew, 109 F.Supp.2d at 593-94 (\"Much of the evidence of improvement is severely undermined by the low levels of success that have characterized defendants' outreach program.\"). Thus, independent of the statistics discussed in Part II(B)(1) and (2), the findings of fact with respect to medical checkups and dental services demonstrate a lack of significant changed circumstances with respect to Defendants' outreach and informing efforts.\nThe Court further finds that Maximus' telephone efforts have increased since it began conducting outreach and informing services for Defendants, although in rough proportion to the increase in class size and not in a manner indicating significant changed circumstances satisfying Rufo's requirements. See Rufo, 502 U.S. at 384, 112 S. Ct. 748. The slight increase in Maximus' mailing campaign and numbers of in-home visits similarly do not constitute significant changed factual circumstances, as both have also increased only in rough proportion to, or slower than, the increase in class size. Class members' continued confusion about basic aspects of Texas Health Steps also supports the Court's conclusion that significant changed factual circumstances do not exist with respect to Defendants' outreach and informing efforts.\nIn sum, the Court finds that neither the individual outreach and informing efforts of Maximus, that of Defendants' STAR MCOs, nor their combination constitute significant changed factual circumstances warranting modification of the Consent Decree. See Rufo, 502 U.S. at 384, 112 S. Ct. 748.\nC. CASE MANAGEMENT\nIn opposition to Defendants' Rule 60(b) Motion, Plaintiffs also argue that Defendants' case management program has not significantly improved. The Court agrees. The Court, in 2000, succinctly described case management:\n\"Case management\" refers to the service provided by \"case managers,\" or employees of the state who help families to navigate the often confusing health care system. Case management helps indigent families to develop coherent plans to take care of their children's *667 health care and related needs. Case managers also work to help empower families to request health care services on their own. Their support can often be crucial for class members and their families, who are largely uneducated and unfamiliar with the state's health care system in general, and with Texas Health Steps in particular. Thus, case management plays a vital role in facilitating recipients' access to needed medical, social, and educational services.\nFrew, 109 F.Supp.2d at 646. The Department of State Health Services (\"DSHS\") administers the Case Management for Children and Pregnant Women (\"CPW\") program, \"which is available for a child or pregnant woman having a health risk or a health condition above and beyond their peers' and who is having trouble accessing services.\" Tr. Vol. III, p. 22 (testimony of Margaret Bruch). Defendants also offer other case management services, including Early Childhood Intervention (children under three years of age), Texas Commission for the Blind, Mental Health and Mental Retardation (\"MHMR\"), and Children with Special Health care Needs (\"CSHCN\"). P.Ex. CM-1. Plaintiffs argue that Defendants' case management programs have recently been seriously curtailed, thus revealing yet another lack of significant changed circumstances warranting modification of the Consent Decree.\nBased on the evidence presented, the Court finds that Defendants' case management program has not experienced significant changed factual circumstances warranting modification of the Consent Decree and supports the Court's conclusion that Texas Health Steps, as a whole, has not experienced significant changed circumstances warranting dissolution of the Consent Decree. First, the cumulative number of class members served by Defendants' case management programs in 2004 was about 79,000 class members; in the first two years of the program, fewer than 33,000 class members received case management services. Tr. Vol. III, pp. 129-30 (testimony of Margaret Bruch). In other words, roughly 3% of the class received case management services in 2004, up from roughly 1% in 1998. Id.; D. Ex. 94; D. Ex. 96. In 2000, the Defendants estimated that about 5-7% of the plaintiff class required case management assistance, while Plaintiffs estimated that about 10% of the class requires the service. See Frew, 109 F.Supp.2d at 647-48. While Defendants have since reduced their estimate of the number of class members requiring case management assistance to a figure less than their 2000 estimate, see Tr. Vol. III, p. 138-42 (testimony of Margaret Bruch), the Court finds that neither the current 3% utilization of case management services nor Defendants' reduced estimate of class members' need indicates significant changed factual circumstances warranting modification of the Consent Decree.\nFurthermore, insufficient evidence was presented to determine whether Defendants have cured the problems found in 2000 relating to recruitment, class members' knowledge regarding case management services, and accessibility in rural areas of the State. See Frew, 109 F.Supp.2d at 646-54. It is of note that in 2000, Defendants had enrolled 162 case managers, and 41 were inactive. Frew, 109 F.Supp.2d at 650. In 2004, only 178 providers were enrolled, and only 73 were active in the entire state. P.Ex. CM-3. Thus, the number of active case managers has decreased from 121 (2000) to 73 (2004), while the size of the class has grown by about one million. P.Ex. CM-3; D. Ex. 94, D. Ex. 96.\n\nPART THREE: DISSOLUTION AS TO ALL URBAN AREAS OF TEXAS\nApart from demanding dissolution of the Consent Decree in its entirety, Defendants *668 demand, in the alternative, that the Consent Decree be dissolved as to all Urban Areas of Texas. In support of this demand, Defendants assert that they are in compliance with federal law in all Urban Areas of the State, exclusive of the areas of the State not under managed care. As discussed in Part I(B)(3)(c), compliance with federal law, alone, is insufficient to necessarily warrant relief under Rule 60(b). Nevertheless, the Court will make findings of fact with respect to Defendants' STAR MCOs, to determine whether Defendants have established significant changed factual circumstances warranting the modification they seek. See Rufo, 502 U.S. at 392, 112 S. Ct. 748.\nBecause the Court finds that Texas Health Steps' overall performance is insufficient to warrant modification of the Consent Decree in its entirety, the Court's inquiries in this section of the opinion are whether Defendants have proved any of the following: (1) STAR MCOs' performance is significantly superior to the performance of non-managed care Medicaid in Texas; (2) STAR MCOs' performance is significantly superior to the overall performance of Texas Health Steps; or (3) Defendants have established other significant changed factual circumstances demonstrating that dissolution of the Consent Decree is warranted with respect to the Urban Areas of Texas. In this analysis, the Court does not consider STAR MCOs' performance relative to the performance of MCOs in other States;[80] indeed, State-to-State MCO comparisons prove neither STAR MCOs' superior performance as compared to Texas Health Steps as a whole nor distinguish Defendants' STAR MCOs from non-managed care areas of Texas.[81]\nIt is also noted that the Court visited managed care issues in its 2000 Opinion. See Frew, 109 F.Supp.2d at 618-37. Similar to the 2000 Hearing, much of the evidence introduced at the June Hearing concerned Defendants' managed care programs throughout the State. Id. at 618. The Court, in 2000, analyzed the performance of Defendants' managed care programs at that time and found them inadequate; accordingly, the Court found Defendants to be in violation of Consent Decree ถถ 190 and 192.[82]Id. at 618-37. *669 The managed care programs operating in Texas today, however, have been more fully implemented and are much more prevalent than those operating in 2000.[83]\nPlaintiffs and Defendants also again presented evidence depicting the advantages and disadvantages of managed care generally.[84] As the Court noted in 2000:\nThe breadth and difficulty of the public policy questions they have raised is apparent. While it forms the subject of much debate and discussion in the realm of public policy, the viability of managed care is not, and should not be, on trial in this proceeding. Whether or not to continue the rapid expansion of managed care is an issue for the legislature alone.\nFrew, 109 F.Supp.2d at 620. Similarly, the Court's focus, for purposes of the instant Rule 60(b) motion, is not on these questions of public policy. Instead of determining whether managed care is the best method of delivering EPSDT services, the Court, in making its determination, looks only to the results of whichever EPSDT service delivery mechanism Defendants, \"with front-line responsibility for administering the program,\" choose to utilize. Frew, 540 U.S. at 442, 124 S. Ct. 899. The Court begins its analysis with an overview of managed care in Texas and MCOs under the STAR contract. Next, it analyzes data compiled by the Texas External Quality Review Organization for Medicaid Managed Care and CHIP. Finally, it details other STAR MCO inadequacies about which Plaintiffs presented evidence.\nA. MEDICAID MANAGED CARE IN TEXAS\nDefendants, through the STAR MCOs with which they have contracted, currently employ two managed care models: primary care case management (\"PCCM\") and health maintenance organizations (\"HMOs\"). See P.Ex. MAN-2 at 8-4. All of the plans in the STAR program, with the exception of Texas Health Network, are HMOs. P.Ex. MAN-2 at 8-4. Approximately 77% of class members enrolled in managed care are members of Defendants' STAR MCOs; thus, only 23% of class member are enrolled in PCCM managed care. D. Ex. 96 (total class members enrolled in managed care); D. Ex. 82 at 4 (total class members enrolled in STAR MCOs). In most populated areas of the *670 State, including Dallas, Houston, San Antonio, El Paso, Fort Worth, and Lubbock, persons who are eligible for Texas Health Steps automatically participate in Medicaid managed care. Tr. Vol. I, pp. 22-23 (testimony of Melinda Metteauer).\nPCCM and HMO models share several characteristics, two of which are particularly relevant to the Court's analysis for purposes of the Rule 60(b) motion.[85] First, in either model, each class member chooses or is assigned a primary care provider (\"PCP\"). The primary function of the PCP is to provide each class member with a \"medical home,\" including comprehensive preventive and primary care. PCPs are also typically charged with approving other forms of care that class members may need, such as most forms of specialty care.[86]See Tr. Vol. VII, pp. 14-15 (testimony of Dr. Hellerstedt); Tr. Vol. II, p. 30 (testimony of Martin Jimenez) (Community First). In other words, PCPs' assist class members and coordinate their basic health care needs, while they also function as gatekeepers who may limit the care that class members receive. See P.Ex. MAN-2 at 8-4. Second, both models involve specific networks of providers and, therefore, limit clients' choice of providers to those under contract with the specific MCO of which they are a member.\nCompensation schemes, however, vary with respect to different managed care models. Typically, the compensation arrangement determines who is responsible for managing the health care of an MCO's members and, additionally, who bears the risk of providing services that are medically necessary.\nIn capitated fee models, [MCOs] are paid flat fees by Medicaid to provide services for their patients. The MCO assumes the risk of providing services that are medically necessary. The model is based on the theory that when organizations are paid a flat fee to serve their patients, they will provide cost-effective preventive care in an effort to avoid the costs of expensive treatment of acute conditions.\nFrew, 109 F.Supp.2d at 618. In other words, the MCO receives a flat fee per member per month in exchange for managing its members' health care, which it then uses to compensate its providers for providing health care to its members. Texas HMOs typically employ the capitated fee model.[87]\nIn primary care case management, however, individual health care providers are paid a small monthly fee to arrange referrals and other needed services for patients, and providers are also paid a fee for the services they provide. See Frew, 109 F.Supp.2d at 618. In other words, primary care case managers receive the capitated fee for managing the patients' health care, instead of the HMO, in addition to receiving fees for the services they provide. In primary care case management, Defendants continue to assume the risk of providing services that are medically necessary rather than shifting the liability to an MCO.\nThe parties have presented arguments relating to incentives the various compensation *671 arrangements create. For example, Defendants argue that reimbursing doctors on a fee-for-service basis, rather than a capitated basis, provides them with an incentive to offer more preventive care. Tr. Vol. II, p. 103 (testimony of Paige Alvarado). Similarly, compensating an MCO on a capitated basis encourages the MCO to increase preventive services in order to prevent large expenditures on emergency service, thus saving the MCO money in the long run. Tr. Vol. II, p. 103 (testimony of Paige Alvarado). As a result, argue Defendants, the compensation system is optimally designed to maximize financial incentives for the provision of preventive and wellness care. Tr. Vol. II, p. 103 (testimony of Paige Alvarado). Plaintiffs, on the other hand, argue that compensating MCOs on a capitated basis creates an incentive to minimize utilization of services, to ensure that the capitated payment covers the services that are medically necessary. While the incentive structure of Defendants' managed care program is indeed an important issue, it is beyond the scope of Defendants' Rule 60(b) motion and, like managed care implementation generally, an issue for the legislature alone. The Court, as previously mentioned, will not pass judgment on Defendants' method of operating the EPSDT program outside the context of the Consent Decree, federal law, and changed factual circumstances.\nB. MCOS OPERATING IN TEXAS' URBAN AREAS\nMaximus, in its capacity as enrollment broker, is the first step in enabling class members' participation in Defendants' managed care program. Once a household in an area served by a managed care organization is determined to be eligible for Medicaid, Maximus, as enrollment broker, receives a notice of its eligibility in electronic form from the State.[88] Maximus then sends out an enrollment kit explaining the basic information about the enrollment process and, likewise, information about the various managed care plans that serve the class members' geographic area. The enrollment kit is so designed as to include a provider list for each health plan serving that geographic area, an enrollment form, and a toll-free number that recipients can call for assistance in enrolling. If the recipient neither calls nor enrolls, Maximus begins proactive enrollment outreach. Proactive outreach includes phone calls and in-home visits for certain populations, and its purpose is to assist recipients in choosing an appropriate managed care plan and selecting a provider to serve as their PCP. Tr. Vol. I, pp. 25-27 (testimony of Melinda Metteauer).\nAs an initial matter, Defendants' presentation did not focus on changed circumstances. Instead, the majority of Defendants' evidence consisted of representatives from Parkland Community Health (Dallas), Community Health Choice (Houston), Community First (San Antonio), First Care (Lubbock) and Amerigroup (Austin), describing their MCOs' policies.[89] The Court notes that much of Defendants' evidence in this regard is inconsequential for purposes of the instant *672 motion because it evidences neither changed factual circumstances nor the alleged widespread success of the STAR MCOs as compared to traditional fee-for-service Medicaid. As stated previously, evidence relating to Defendants' and STAR MCOs' service plan is not dispositive of the provision of the services; the Court relies chiefly on statistics presented by Defendants, taking into account the methodologies employed, so as to evaluate the current state of Texas' managed care EPSDT program.[90] The Court presents a brief overview of each STAR MCO about which evidence was presented.\nParkland Community Health (\"Parkland\") is an MCO serving recipients in the Dallas Service Area. It has approximately 125,000 members, and the vast majority of its members are on Medicaid. Tr. Vol. IV, p. 122 (testimony of Dr. Lachman[91]). When a new recipient enrolls in Parkland, he or she, according to the plan, is to receive a welcome phone call and a welcome packet explaining how to use the plan. Tr. Vol. IV, p. 124, 130 (testimony of Dr. Lachman). Parkland also conducts outreach and informing separate from the outreach that is conducted by Maximus on behalf of the State. Tr. Vol. IV, p. 151 (testimony of Dr. Lachman). Furthermore, Parkland operates a toll-free number whose aim is to provide information to its members, including information regarding Texas Health Steps. Tr. Vol. IV, p. 139 (testimony of Dr. Lachman). Per its policy, Parkland offers case management services, facilitates making appointments, and arranges needed transportation for its members to medical appointments. Tr. Vol. IV, pp. 125, 127 (testimony of Dr. Lachman). Parkland's case management program includes 18 case managers, and it contracts with over 500 primary care providers in the seven counties it serves. Tr. Vol. IV, p. 125-26, 131 (testimony of Dr. Lachman). If a member needs access to a specialist that is not participating in Parkland's plan, Parkland's case management staff aspires to arrange for an out-of-network referral.[92] Tr. Vol. IV, p. 147 (testimony of Dr. Lachman).\n*673 Community Health Choice (\"Community Health\") is an MCO that serves clients in the Houston area, including Harris, Montgomery, Waller, Brazoria, Fort Bend, and Galveston counties. It serves only Medicaid clients, and the plan has about 50,000 members. Tr. Vol. IV, p. 181 (testimony of Kim Nettleton[93]). The welcome packet, which Community Health attempts to provide to all newly enrolled members, includes an explanation of how to read the Medicaid identification card provided by the State, contains relevant toll-free numbers that members may call for assistance, and is written at the sixth-grade level in both English and Spanish. Tr. Vol. IV, p. 188 (testimony of Kim Nettleton). Community Health has five field staff members who conduct outreach to recipients; further, the plan has a full-time staff member who assists members in completing the Medicaid re-certification process. Community Health also operates a toll-free line for the assistance of its members that is separate from the help line operated by Maximus. Tr. Vol. IV, p. 190 (testimony of Kim Nettleton). Community Health allows access to in-network specialists without the need for a referral, maintains a specialist-scheduling office to help set members' appointments with specialists, and attempts to provide transportation reimbursement and taxi vouchers to help members get to appointments. Tr. Vol. V, p. 23-24 (testimony of Kim Nettleton).\nCommunity First Health Plans (\"Community First\") is an MCO based in San Antonio that serves the Bexar County Service Area (including the eight contiguous counties). Tr. Vol. II, pp. 4-5 (testimony of Martin Jimenez[94]). Community First participates in the Texas Medicaid managed care program, in addition to offering commercial managed care. Tr. Vol. II, p. 5 (testimony of Martin Jimenez). Community First attempts to send a welcome packet and conduct a welcome telephone call to its newly enrolled members. Tr. Vol. II, pp. 6, 21 (testimony of Martin Jimenez); see also D. Ex. 40. New members of Community First also receive a survey card designed to discover whether the member's immunizations are past due. Tr. Vol. II, pp. 11-12 (testimony of Martin Jimenez). Community First operates an information hotline for all members to call with questions about program services separate from the information line that is operated by the State through its contract with Maximus. Tr. Vol. II, p. 22 (testimony of Martin Jimenez). All Community First providers receive a STAR provider manual that describes the necessary components of the Texas Health Steps checkup in detail, and each must agree to provide a Texas Health Steps checkup on all newly enrolled members within 90 days of their enrollment, in accordance with Consent Decree ถ 192. Tr. Vol. II, pp. 24-25 (testimony of Martin Jimenez). Community First has physicians that practice all 27 identified medical specialties. Tr. Vol. II, pp. 29-30 (testimony of Martin Jimenez). A referral is required from the member's PCP if a Community First member who is on Medicaid needs to see a specialist. Tr. Vol. II, p. 30 (testimony of Martin Jimenez).\n*674 First Care is an HMO that serves Lubbock County and the eight surrounding counties. Tr. Vol. II, pp. 94-95 (testimony of Paige Alvarado[95]). When a new member enrolls in First Care, he or she receives a new member packet and a welcome phone call. Tr. Vol. II, p. 106 (testimony of Paige Alvarado). The new member packet contains all of the important phone numbers that a recipient might need to call in order to receive assistance, including the phone number for the assistance line that is operated by Maximus. Tr. Vol. II, p. 108 (testimony of Paige Alvarado). First Care also conducts outreach, which is separate from the outreach that is conducted by the State through Maximus. Tr. Vol. II, p. 105 (testimony of Paige Alvarado). First Care operates a phone line that is separate from the Texas Health Steps information line that is operated by the State through Maximus, and the phone line receives an average of 3,000 calls per month from members. Tr. Vol. II, p. 122 (testimony of Paige Alvarado). Members of First Care do not need referrals to seek care from a specialist. In the network operated by First Care, there are approximately 250 participating primary care physicians, approximately 450 specialists, and 12 hospitals.[96] Tr. Vol. II, p. 98 (testimony of Paige Alvarado). First Care sends \"overdue\" letters to Medicaid members who are deemed by the State to be due or overdue for a Texas Health Steps examination, and those letters have received a 92 percent response rate. Tr. Vol. II, p. 123 (testimony of Paige Alvarado). Currently, there are over 3,000 First Care Texas Health Steps recipients in case management. Tr. Vol. II, p. 113 (testimony of Paige Alvarado).\nAmerigroup is an MCO that serves the Dallas, Houston, Fort Worth, and Austin delivery areas. Tr. Vol. II, p. 201 (testimony of Aron Head[97]). Amerigroup has Texas Health Steps recipients among its members, and it is the largest of Defendants' STAR MCOs. Tr. Vol. II, p. 153 (testimony of Aron Head); D. Ex. 82 at 4. When a new member of the plaintiff class enrolls with Maximus and selects Amerigroup as his or her managed care organization, the new member receives a welcome phone call and a welcome packet that includes a new member handbook explaining all of the benefits to which he or she is entitled and relevant telephone numbers. Tr. Vol. II, p. 154 (testimony of Aron Head). Amerigroup aspires to have its doctors perform a Texas Health Steps screening for newly-enrolled class members, regardless of Amerigroup's determination that the class member is past due. Tr. Vol. II, p. 161 (testimony of Aron Head). Amerigroup also conducts outreach to its members that is separate from the outreach that is conducted by the State through Maximus. Tr. Vol. II, p. 154 (testimony of Aron Head). Amerigroup sends out periodic fliers, called \"Ameritips,\" to members and providers, which serve to inform members of the importance of obtaining Texas Health Steps checkups, and they include a simplified periodicity schedule. *675 Tr. Vol. II, p. 160 (testimony of Aron Head). Amerigroup sends out a card to each member on his or her birthday specifying which immunizations and checkups are needed. Tr. Vol. II, p. 171 (testimony of Aron Head); see also D. Ex. 63. Amerigroup also operates a medical transportation program, separate from that operated by the Texas Department of Transportation, that aims to transport members to appointments. Tr. Vol. II, p. 164 (testimony of Aron Head).\nC. MANAGED CARE STATISTICS\nAs discussed above, the process by which STAR MCOs' representatives operate is only tangentially relevant to the Court's inquiry as to whether significant changed factual circumstances exist warranting revision of the Consent Decree. The Court thus turns to statistics purporting to compare STAR MCOs' performance and Defendants' EPSDT program in place in non-Urban Areas of Texas.\n\nHEDIS Measures\nThe Health Plan Employer Data and Information Set (\"HEDIS\") is a standard set of performance measures used to compare managed care organizations nationwide. Tr. Vol. II, p. 42 (testimony of Carol Huber). HEDIS is developed and maintained by the National Committee for Quality Assurance (\"NCQA\"), a nonprofit organization in Washington, D.C.[98] Tr. Vol. II, p. 45 (testimony of Carol Huber). HEDIS data is collected as part of the attempt by the federal government to establish a standardized system of data collection that permits State-to-State comparisons among various aspects of managed care plans. Tr. Vol. IV, p. 76 (testimony of Dr. Moore); see also Tr. Vol. VI, pp. 42-43 (testimony of Dr. Shenkman). HEDIS data, similar to CMS-416 data, accounts for the length of class members' enrollment in calculating the statistics. Defendants' Post-Hearing Brief at 19. Rather than accounting for the average period of eligibility, as the CMS-416 does, however, HEDIS statistics generally include only those class members who have been enrolled in Medicaid, and in the same Medicaid HMO, for at least 12 months with at most one brief interruption. Tr. Vol. VI, pp. 23-24 (testimony of Dr. Shenkman). This standard automatically excludes a majority of the plaintiff class, as most class members do not satisfy this HEDIS requirement.[99]\n\nThe EQRO\nThe Institute for Child Health Policy at the University of Florida serves as Texas' External Quality Review Organization (the \"EQRO\"). The EQRO prepares multiple reports for Defendants, including a chart book containing STAR Managed Care Organization Quality of Care Measures *676 (\"Chart Book\") and a report analyzing the quality of the data on which the statistics in the Chart Book are based (entitled \"Validating Encounter Data\").[100] D. Ex. 82, 84. Defendants' EQRO uses HEDIS measures to assess STAR MCO Program Quality of Care while also analyzing STAR MCO Program Access to Care in an effort to provide an independent assessment of the performance of Texas' STAR MCO Program. See id. The statistical analysis that follows is based on the reports prepared by the EQRO, as the parties did not offer any other credible statistics on which to base an analysis of STAR MCO program performance relative to Texas Health Steps' non-managed care programs.\n1. Data Quality and Accuracy\nThe parties' disagreements with respect to the reliability of HEDIS data analyzed by the EQRO can be distilled into two categories: (1) data parameters and (2) data collection. First, Plaintiffs argue that, because HEDIS medical checkup specifications include both Texas Health Steps checkups and \"well child\" checkups, the reported statistics regarding checkups are inflated and misrepresent the STAR Program Quality of Care. In other words, argue Plaintiffs, the HEDIS/EQRO data parameters are inconsistent with Texas Health Steps requirements and, such being the case, they exceed the data parameters that the parties and the Court should employ to accurately assess the success of STAR MCOs. Second, Plaintiffs argue that the data Defendants provide to the EQRO is incomplete and inaccurate. Defendants assert that the data is reliable and that the Court should assess STAR MCO performance using HEDIS data specifications. The Court now addresses these arguments relating to data quality and collection for purposes of Defendants' Rule 60(b) Motion.\n\nData Parameters\nBecause HEDIS is used to assess commercial managed care as well as publicly financed managed care, its measures do not always coincide with Texas Health Steps standards. For example, the EQRO includes \"well child\" visits in its HEDIS analysis. In 2000, the Court found that Defendants' data is inflated because it includes \"well child\" visits that are not as comprehensive as Texas Health Steps medical checkups; the so-called \"well child\" visit is considerably less comprehensive than the Texas Health Steps checkup and \"do[es] not substitute for the full checkup[] required by federal law, by decree paragraphs 190 and 192, and by defendants' own policies.\" Frew, 109 F.Supp.2d at 620-21, 623. Similarly, the statistics that Defendants present in support of their Rule 60(b) Motion include \"well child\" visits in addition to Texas Health Steps medical checkups, thus inflating the reported number of class members receiving the comprehensive checkups to which they are entitled. See Tr. Vol. VI, p. 46-47 (testimony of Dr. Shenkman). The Court finds that the HEDIS/EQRO statistics regarding \"well child\" checkups are inflated with respect to the number of comprehensive checkups class members receive, and the EQRO's conclusions are unreliable to assess provision of Texas Health Steps checkups.[101] However, the *677 statistics are somewhat useful to compare relative numbers of \"well child\" checkups between STAR MCOs and non-managed care Medicaid within Texas. The Court will thus analyze the HEDIS/EQRO statistics in an attempt to assess relative performance of the two health care delivery models for purposes of Defendants' Rule 60(b) Motion.\n\nData Collection\nThe EQRO's report analyzing the quality of the data on which the statistics in the EQRO's Chart Book are based compares the information contained in HMOs' administrative data to that contained in medical records. D. Ex. 84. \"The primary purpose of this study was to validate the data contained in the encounter data detail against the care and services documented in the enrollees' medical records.\" Id. at 1. While the EQRO commended all of the STAR MCOs for increased provider response to record requests from 2002(65%) to 2003 (84.1%), the EQRO received a response from only approximately 60% of the enrollees who were requested to respond. Id. at 1, 12. Plaintiffs argue that the study is thus inherently flawed because the EQRO could not review approximately 40% of the medical charts they requested from STAR MCOs\nElizabeth Shenkman, Ph.D., director of the EQRO, posits that Defendants' managed care data are accurate. D. Ex. 87. Because the EQRO commended the STAR MCOs for their provider response, without mention of the 60% enrollee response rate, and made no negative findings regarding either provider or enrollee response rate, the Court accepts Defendants' and Dr. Shenkman's assessment that the data used to calculate statistics contained in the Chart Book is reasonably accurate.\n2. EQRO Findings\nThe Court first notes that Defendants failed to offer evidence directly comparing Urban Areas of Texas to non-Urban Areas. Similarly, Defendants failed to offer evidence directly comparing Urban Areas of Texas to the overall performance of Texas Health Steps. Instead, Defendants' offered the EQRO Chart Book as evidence of significant changed circumstances, which contains, inter alia, statistics for: each individual STAR MCO; the average of all STAR MCOs for each measurement (\"All STAR MCOs\"); the national average of other States' MCOs (the \"HEDIS Mean\"); primary care case management for Texas' Temporary Aid To Needy Families program (\"PCCM-TANF\"); and fee-for-service for Texas' Temporary Aid To Needy Families program (\"FFS-TANF\").\nComparison of All STAR MCOs to other States' MCOs (the HEDIS Mean) is irrelevant for purposes of Defendants' Rule 60(b) Motion.[102] Additionally, PCCM-TANF statistics do not necessarily reflect the performance of Texas Health Network, Defendants' only PCCM program. As there is no evidence directly permitting either of the relevant comparisons, Defendants have failed to satisfy their burden to prove significant changed factual circumstances warranting modification of the Consent Decree, unless the Court determines that any of the statistics in the EQRO's Chart Book may otherwise aid in the Court's inquiry as to whether significant changed factual circumstances exist *678 with respect to Defendants' managed care program.\nThe Court finds the FFS-TANF statistic to be the most relevant comparison for purposes of Defendants' Rule 60(b) motion, though it is not necessarily representative of traditional fee-for-service Medicaid in the non-Urban Areas of Texas.[103] While it represents statistics for Texas' Temporary Aid to Needy Families program, not Defendants' non-managed care EPSDT program, the Court finds that it is the statistic most representative of a direct comparison between the Urban and non-Urban Areas of Texas. The Court thus accepts the EQRO's determination that TANF and TANF-related recipients \"are the most comparable to those served under the STAR MCO Program.\" D. Ex. 82 at 3. Recognizing that FFS-TANF statistics may not directly reflect the performance of fee-for-service Medicaid in non-Urban Areas of Texas, the Court, nevertheless, proceeds with its analysis to determine whether a comparison of All STAR MCOs to FFS-TANF statistics, imperfect as it is, supports Defendants' assertion of significant changed factual circumstances warranting modification of the Consent Decree. Rufo, 502 U.S. at 392, 112 S. Ct. 748.\nWhile the Court relies primarily on STAR MCO averages and FFS-TANF statistics in its analysis, it is additionally noted that the average for STAR MCOs is not necessarily indicative of STAR MCOs' performance in each city in Texas. Indeed, as discussed below, statistics for individual STAR MCOs occasionally vary widely.\na. Quality of Care\nThe EQRO uses multiple HEDIS statistics to measure the overall STAR MCO Program Quality of Care.[104]See D. Ex. 82 at Chart 7-19. The Court details the EQRO's findings, comparing All STAR MCOs to FFS-TANF, below.\nEven when combining less comprehensive \"well child\" checkups with Texas Health Steps checkups, fewer STAR MCO members receive the required six checkups in the first 15 months of life. D. Ex. 82 at 12. Only 40.86% of STAR MCOs' enrollees received six or more \"well-child\" checkups, as compared to 47.17% of FFS-TANF enrollees. Id. STAR MCOs varied from 20.25% (Texas Children's) to 52.21% (First Care) for this statistic, thus revealing a significant disparity among STAR MCOs. Id. STAR MCO members also received fewer \"well-child\" checkups in the 3rd, 4th, 5th, and 6th years of life than did FFS-TANF recipients. Approximately 64% of children in this age group enrolled in STAR MCOs received \"well-child\" visits, whereas approximately 69% of children in this age group under FFS-TANF received them. D. Ex. 82 at 14. The variance among STAR MCOs was only slight with respect to this statistic, with Community First performing most poorly at 59.32% and El Paso First providing the most \"well child\" checkups at 69.66%. Id.\n*679 The disparity between STAR MCOs and FFS-TANF recipients was more marked when analyzing adolescent \"well-child\" visits. Approximately 43% of adolescents in STAR MCOs received \"well-child\" visits, as compared to approximately 51% of FFS-TANF recipients. D. Ex. 82 at 15. The variability among STAR MCOs was pronounced in this statistic as well, the results varying from 39.06% (Superior) to 54.08% (First Care). Id.\nFFS-TANF recipients also fared better with respect to continuity of care and providing follow-up care in the community after inpatient stays for mental illness.[105] While only 34.51% of STAR MCO members received 7-day follow-up after hospitalization for mental illness, and only 62.80% received 30-day follow-up, 42.88% of FFS-TANF recipients received 7-day follow-up and 68.6% received 30-day follow-up.[106] D. Ex. 82 at 24. Other statistics in which FFS-TANF recipients received higher quality of care than STAR MCO members include breast cancer screening, cervical cancer screening, and appropriate testing for children with Pharyngitis. Id.\nStill, FFS-TANF recipients receive inferior quality of care as compared to STAR MCO members with respect to prenatal care and postpartum care. D. Ex. 82 at 16-17. While STAR MCOs provided first trimester prenatal care to 84.48% of enrollees, only 61.98% of FFS-TANF recipients received first trimester prenatal care. Id. at 16. Whereas STAR MCOs' performance on this HEDIS measure varied significantly, all STAR MCOs exceeded that of FFS-TANF. Id. Additionally, STAR MCOs provided postpartum care services to 53.93% of its enrollees, while only 49.67% of FFS-TANF recipients received postpartum care services. Id. at 17. The variance among STAR MCOs for this measure is somewhat alarming, as STAR MCO postpartum care provision varies from 41.72% (Parkland) to 57.08% (El Paso First). Id.\nb. Access to Care\nTo determine relative performance of different health care delivery plans with respect to access to care, as opposed to quality of care, the EQRO compiles four statistics relating to \"ambulatory care sensitive conditions\" (\"ACSCs\").[107] As stated in the EQRO's Chart Book, \"ACSCs are those conditions . . . that should not result in an inpatient stay or an emergency room visit, if there is good access to care in the *680 outpatient setting. Preventable hospitalizations and emergency room visits are costly and do not reflect good quality of or access to care for enrollees.\" D. Ex. 82 at 8. High numbers of ACSCs \"could be an indicator that there's poor access to care. That's predominantly why we use this indicator as a measure of access to care.\" Tr. Vol. VI, p. 9 (testimony of Dr. Shenkman). ACSC is a nationally recognized measure recommended by the Institute of Medicine.[108] Tr. Vol. V, pp. 223-24 (testimony of Dr. Shenkman). As Defendants assert that one of their main purposes for employing the managed care model across the State is to save money by keeping class members out of the emergency room when care can be provided elsewhere, Tr. Vol. VI, pp. 37-38 (testimony of Dr. Shenkman), an analysis of emergency department visits and hospitalizations for ACSCs is particularly relevant to determine the degree to which STAR MCOs have experienced success.\nFirst, each of Defendants' STAR MCOs had fewer than one percent of enrollees with one or more hospital stays due to an ACSC. D. Ex. 82 at 6. The average for All STAR MCOs was .66%; the EQRO Chart Book does not provide a relative comparison to other health care delivery models. Id. As Dr. Shenkman testified, however, when only one percent of enrollees in managed care is experiencing an inpatient stay due to an ambulatory care sensitive condition, this leads to the conclusion that access to care in an outpatient setting is very good. Tr. Vol. VI, p. 9 (testimony of Dr. Shenkman). Plaintiffs do not rebut this statement; thus, the Court accepts Defendants' assertion. However, the inquiry at hand is not whether access to STAR MCO primary care is acceptable; instead, the inquiry is whether access to care for STAR MCO members is superior to non-managed care recipients, thus constituting significant changed circumstances warranting modification of the Consent Decree. Furthermore, Defendants do not provide a similar statistic for past years for purposes of arguing significant changed circumstances. Hence, the Court turns to a comparison of STAR MCO and FFS-TANF ACSC statistics to assess relative performance.\nSTAR MCOs have a smaller percentage of hospitalizations with a primary diagnosis of an ACSC than FFS-TANF (6.94% as compared to 9.51%, respectively). Tr. Vol. VI, p. 11 (testimony of Dr. Shenkman); see D. Ex. 82, pp. 6-7. The variability among STAR MCOs is also relatively minor-STAR MCOs vary from 6.29% (Amerigroup) to 9.58% (First Care), excluding Texas Children's, which was an outlier with 15.11% of hospitalizations with a primary diagnosis of ACSC. Id. at 7. When comparing percentages of emergency department visits with a primary diagnosis of an ACSC, as opposed to hospitalizations, though, STAR MCOs perform less well than FFS-TANF.[109] While 36.41% of STAR MCOs' emergency department visits *681 had a primary diagnosis of an ACSC, only 30.57% of FFS-TANF members' emergency department visits were for an ACSC. Id. at 10.\nE. CONCLUSIONS OF LAW: URBAN AREAS OF TEXAS\nThe Court, in its 2000 Opinion, found that class members enrolled in managed care received fewer checkups than those enrolled in traditional fee-for-service plans. Frew, 109 F.Supp.2d at 622. Defendants claimed that their managed care programs improve health care for class members through the application of the \"medical home\" model, while Plaintiffs responded that these concepts fail plaintiffs in their applications and prevent timely receipt of EPSDT services by class members enrolled in managed care plans. See id. Based on the evidence presented at the June Hearing, the Court finds that Defendants have failed to establish factual circumstances significantly different from those found in 2000 with respect to the provision of EPSDT services by STAR MCOs.\nFirst, Defendants failed to present evidence directly comparing Urban Areas of Texas to non-Urban Areas, so as to distinguish superior performance of STAR MCOs. They also failed to present evidence relating to relative performance of STAR MCOs and Texas Health Steps as a whole. Defendants failed to present any evidence that establishes the superior performance of STAR MCOs and, consequently, failed to establish significant changed factual circumstances warranting revision of the Consent Decree. See Rufo, 502 U.S. at 392, 112 S. Ct. 748.\nDefendants, in their presentation of evidence at the June Hearing, relied chiefly on those in charge of the STAR MCOs to prove their superior performance. The Court does not accept the subjective opinion of those in charge of STAR MCOs to objectively evaluate their performance. While testimony of representatives of STAR MCOs is informative and explicates how the MCOs intend to function, it does not prove significant changed factual circumstances in Defendants' provision of EPSDT services.\nThe objective evidence on which Defendants chiefly rely, the EQRO's most recent Chart Book, also supports the Court's finding that no changed factual circumstances warranting modification of the Consent Decree exist. While Defendants insist that STAR MCOs' performance relative to other States' MCOs establishes compliance with federal law, the Court finds these comparisons irrelevant and rejects Defendants' legal argument that compliance with federal law warrants Rule 60(b) relief. See discussion supra Part I(B)(3)(c). Furthermore, the EQRO Chart Book evidences STAR MCOs' inferior performance relative to FFS-TANF recipients. Specifically, STAR MCOs performed less well than FFS-TANF with respect to \"well child\" checkups in the first 15 months of life, \"well child\" checkups in the 3rd, 4th, 5th, and 6th years of life, adolescent \"well child\" visits, both 7- and 30-day follow-up care for mental illness, breast cancer screening, cervical cancer screening and appropriate testing for children with Pharyngitis. See D. Ex. 82. As the Court finds that FFS-TANF is the statistic most relevant to the instant inquiry, and the comparison fails to evidence superior performance of Defendants' STAR MCOs, Defendants have failed to present any evidence that proves significant changed circumstances warranting revision of the Consent Decree with respect to the Urban Areas of Texas.\n\nPART FOUR: RUFO TAILORING REQUIREMENT\n\"Once a court has determined that changed circumstances warrant a modification *682 in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances.\" Rufo, 502 U.S. at 391, 112 S. Ct. 748. Rufo's second prong, then, places an additional burden on the moving party to show that, in addition to changed factual circumstances warranting modification of the consent decree, the proposed relief is suitably tailored to those changed circumstances. In the instant motion, Defendants demand only two alternative forms of relief, both of which are similarly cataclysmic with respect to the Texas Health Steps program.[110] To determine whether either of these extreme forms of relief is suitably tailored to the found facts, or even the alleged facts, the Court looks to the direction provided by the Supreme Court in Frew. 540 U.S. at 441, 124 S. Ct. 899. As explained in Part I(B)(2), the Supreme Court cited two cases as examples of Rule 60(b) application to consent decrees involving institutional reform. Id. In both cases, the defendants' motions to vacate or dissolve the consent decree in issue were denied as not being suitably tailored to the changed circumstances.\nAfter the Supreme Court's Rufo decision, as stated previously, the case was remanded to the United States District Court for the District of Massachusetts, for reconsideration under the appropriate, flexible standard. 502 U.S. at 393, 112 S. Ct. 748. On remand, the defendants argued, inter alia, that the significant change in factual circumstances, an upsurge in the population of pretrial detainees, warranted dissolution of the consent decree. Inmates of Suffolk County Jail v. Rufo, 148 F.R.D. 14, 23 (D.Mass.1993). So as to avoid the court's being unduly involved in the day-to-day implementation of the consent decree in response to the unanticipated increase in inmate population, the defendants argued, the court should \"simply let the Sheriff have unfettered discretion to order double-bunking without any constraints or limitations as to criteria regarding associated conditions of confinement.\" Id. The district court found, in the process of denying the defendants' motion to vacate the consent decree, that this \"hard-line approach is plainly incompatible with [the district court's] obligation, under the order of remand, to consider whether any proposed modification of the consent decree is suitably tailored to the changed circumstances.\" Id.\nIn Shapp, the defendants moved to vacate or modify the consent decree as a result of their inability to comply, after a good faith effort, with certain terms of the consent decree. 602 F.2d at 1120-21. Instead of vacating the consent decree in its entirety, the district court merely modified three provisions of the decree that were no longer realistically achievable. Id. at 1120. The Third Circuit praised the improvement in Pennsylvania's EPSDT program while recognizing that, after the modification of the consent decree in only three respects, \"the decree continues in force most of the provisions . . . which have produced one of the most successful EPSDT programs in the country.\" 602 F.2d at 1120. Although the Shapp Court *683 found that Pennsylvania's EPSDT program had made vast improvements and was one of the best in the nation,[111] the decree was not dissolved; instead, only the few unattainable provisions were modified.\nIn the instant case, the Court finds that significant changed factual circumstances do not exist with respect to the most reliable indicators of the overall performance of Texas Health Steps. See supra Part II. As these indicators of Texas Health Steps' overall performance, such as medical checkups and provision of dental services, have experienced no significant changed factual circumstances, any remedy that would dissolve the Consent Decree in its entirety is grossly ill-tailored to the facts as found by the Court.\nDefendants have also attempted to prove that Texas Health Steps is exemplary relative to other States, and/or in compliance with federal law, as support for dissolution of the Consent Decree in its entirety. Even assuming, arguendo, that Defendants proved that Texas Health Steps is exemplary relative to other States' EPSDT programs, Shapp demonstrates that dissolution of a consent decree is not necessarily a suitably tailored remedy, even for a State with one of the best EPSDT programs in the country. The district court's austere rejection of the defendants' motion to vacate the consent decree in Rufo also illustrates the radical nature of a court's dissolving a consent decree in its entirety, and it reiterates the Supreme Court's directive that \"a consent decree is a final judgment that may be reopened only to the extent that equity requires.\" Rufo, 502 U.S. at 391, 112 S. Ct. 748.\nWith respect to the Urban Areas of Texas, Defendants have failed to prove that STAR MCOs achieve better results that traditional fee-for-service Medicaid. Instead, the evidence reveals that STAR MCOs are performing slightly worse that traditional fee-for-service Medicaid, thus failing to prove significant changed factual circumstances warranting modification of the Consent Decree. Furthermore, dissolution as to all Urban Areas would be highly ill-tailored to changed circumstances based on average STAR MCO performance. As detailed in Part II(C)(2)(a) and (b), performance of each individual STAR MCO varies from statistic to statistic, and there is often a wide variation among Defendants' MCOs for a single statistic. Defendants seemingly recognize the disparity among STAR MCOs, as their evidence at the June Hearing focused on STAR MCOs other than Superior, the second largest STAR MCO and one of the overall worst performing. See D. Ex. 82. Any remedy that does not take into account the particular circumstances of each individual MCO in modifying specific provisions of the Consent Decree would fail to be tailored to changed factual circumstances.\nFinally, the Supreme Court's admonishment in Frew that, when a consent decree mandates a state to administer a federal program, \"principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion,\" 540 U.S. at 442, 124 S. Ct. 899, fails to provide solace for Defendants. As the Court has emphasized throughout this opinion, between (a) the bounds of the extensively-negotiated Consent Decree provisions and (b) any changed circumstances, *684 Defendants have latitude and substantial discretion to administer Texas' EPSDT program. Unless Defendants can satisfy the appropriate Rule 60(b) standard, however, the Consent Decree remains enforceable, and \"enforcing the decree [continues to] vindicate[] an agreement that the state officials reached to comply with federal law.\" Frew, 540 U.S. at 439, 124 S. Ct. 899.\nAccordingly, the Court finds that Defendants have failed to satisfy Rufo's tailoring requirement with respect to both forms of demanded relief.\n\nPART FIVE: DEFENDANTS' ATTEMPTS AT COMPLIANCE\nIn addition to Rufo's requirements that a party seeking modification of a consent decree establish a significant change in facts or law warranting revision of a consent decree and that the proposed modification be suitably tailored to the changed circumstances, Cooper requires the party to show further that the changed factual circumstances affect compliance with, or the workability or enforcement of, the final judgment, and that they occurred despite the officials' reasonable efforts to comply with the judgment. Cooper, 33 F.3d at 544; Rufo, 502 U.S. at 392, 112 S. Ct. 748. Defendants have failed to meet their burdens under Cooper.\nDefendants offered no evidence that the alleged changed factual circumstances affect compliance with, or the workability or enforcement of, the Consent Decree. Indeed, Defendants rarely referred to Consent Decree provisions at the June Hearing, with the exception of ถถ 171 and 284, and, instead, focused on attempting to prove compliance with federal law. See discussion supra Part II(A)(3) (addressing Defendants' arguments with respect to Consent Decree ถถ 171 and 284). Defendants' evidence reveals that, rather than proving changed circumstances satisfying this portion of the Cooper standard, Defendants simply intended to re-litigate the Consent Decree's underlying claims. While the Court understands Defendants' preference not to be obligated to comply with the Consent Decree's plan for implementing the federal EPSDT statute, the Court finds that Defendants' evidence is insufficient satisfy this Cooper requirement.[112]\nThe Court further finds that Defendants have not made reasonable efforts to comply with the judgment. Cf. Cooper, 33 F.3d at 543-44 (upholding the magistrate judge's finding that \"the county officials had ceased making any attempt to abide by the conditions set out in the Final Judgment.\") While the violations found in 2000 do not necessarily evidence a lack of Defendants' reasonable efforts to comply with the Consent Decree, Defendants have failed, and continue to fail, even to attempt compliance with certain provisions. Consent Decree ถถ 17, 35, 37, 171 and 223 are the subject of Plaintiffs' pending Motion for Sanctions. Docket No. 429. Defendants have unilaterally determined that these provisions are either *685 harmful or no longer desirable and have ceased complying with them without first requesting relief from the Court.[113] For example, Defendants discontinued complying with Consent Decree ถ 17, which requires Defendants to send letters to recipients periodically due for medical and/or dental checkups, and Consent Decree ถถ 35 and 37, which require oral outreach units to contact all recipients who miss a medical or dental checkup \"in the face of numerous complaints from recipients.\"[114] Defendants' Rule 60(b) Motion at 21. Complaints from class members is not a judicially cognizable justification for unilaterally determining that compliance with a Consent Decree provision is no longer necessary. Defendants must request relief from the Court, in order to alter or amend the obligations contained in the judicially-enforceable Consent Decree.\nWith respect to Consent Decree ถถ 171 and 223, requiring annual reports about class members' receipt of dental checkups and assessments of Defendants' Medical Transportation Program (\"MTP\"), Defendants have unilaterally determined that bi-annual reporting is more desirable. Furthermore, despite the Court's 2000 finding that Consent Decree ถ 284 requires additional information beyond that reported on the CMS-416, see Frew, 109 F.Supp.2d at 612, Defendants continue to fail to comply with this provision of the Consent Decree. See discussion supra Part II(A)(3). In sum, Defendants have violated, and continue to violate, multiple Consent Decree provisions, without regard for the obligations contained therein, and the Court finds that they have not exerted reasonable efforts to comply with all, or substantially all, of the judgment.[115]See Cooper, 33 F.3d at 544.\n*686 Defendants seemingly fail to recognize that \"Rule 60(b)(5) provides that a party may obtain relief from a court order when `it is no longer equitable that the judgment should have prospective application,' not when it is no longer convenient to live with the terms of a consent decree.\" Rufo, 502 U.S. at 383, 112 S. Ct. 748. As the Court finds that Defendants have failed to satisfy the applicable Rule 60(b) standard, it is equitable that the Consent Decree should have prospective application.\n\nConclusion\nTo recapitulate, the Court finds that Defendants have failed to prove significant changed factual circumstances warranting revision of the Consent Decree with respect to Texas Health Steps as a whole or with respect to the Urban Areas of Texas; that Defendants have failed to prove that either form of demanded relief is suitably tailored to any changed circumstances; that Defendants have failed to show that the changed factual circumstances affect compliance with, or the workability or enforcement of, the final judgment; that Defendants have failed to prove that any changes occurred despite Defendants' reasonable efforts to comply with the judgment; and that the evidence adduced at the June Hearing does not compel the Court to sua sponte modify any provision of the Consent Decree. Accordingly, Defendants' Rule 60(b) Motion shall be, and is hereby, DENIED.\nNOTES\n[1] The plaintiff class, as of 2004, consists of 2,706,903 children. D. Ex. 96.\n[2] Title 42 U.S.C. ง 1396a(a) provides:\n\nA State plan for medical assistance must โ€”\n. . .\n(43) provide for โ€”\n(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases,\n(B) providing or arranging for the provision of such screening services in all cases where they are requested,\n(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and\n(D) reporting to the Secretary (in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year\n. . . .\n[3] This provision of federal law sets forth the minimum services which the state must provide under the EPSDT program, including: (1) screening services, including comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate immunizations, laboratory tests (including appropriate lead blood level assessments), and health education; (2) vision services, including diagnosis and treatment for vision defects; (3) dental services, including \"relief of pain and infections, restoration of teeth, and maintenance of dental health;\" (4) hearing services, including diagnosis and treatment for defects in hearing; and (5) \"such other necessary health care . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered by the State plan.\"\n[4] Paragraph 303 of the Consent Decree states: \"This Decree contemplates that the parties will reach agreement in the future about several issues. It further contemplates that Defendants' future activities will comport with the terms and intent of this Decree. If this proves to be incorrect, the parties may request relief from this Court. Absent emergency, no party may request relief from the Court without first providing the opposing party with one month's written notice.\"\n[5] The Supreme Court also noted that \"the state officials did not contend that the terms of the decree were impermissible under Ex Parte Young. Nor do they contend that the consent decree failed to comply with Firefighters. The officials challenge only the enforcement of the decree, not its entry.\" Frew v. Hawkins, 540 U.S. 431, 438, 124 S. Ct. 899, 157 L. Ed. 2d 855 (2004).\n[6] Defendants, on remand, \"continue[d] to press its remaining arguments that the district court improperly expanded the scope of the consent decree beyond the agreement of the parties,\" Frazar, 376 F.3d at 446, although the Fifth Circuit declined to reach the merits of the appeal at that time.\n[7] These requirements of Rufo and Cooper are detailed in Part I(B)(2), infra.\n[8] Defendants argue that, based on general principles of contract law, the Consent Decree should be dissolved. See Defendants' Post-Hearing Brief at 4; Tr. Vol. VIII, p. 76 (closing argument of Defendants' counsel). If the Consent Decree is not a final judgment, Defendants argue, then they did not receive any consideration for undertaking the obligations set forth in it, and should thus be relieved of the obligations. Defendants' argument, however, rests upon their erroneous determination that the Court may declare that the Consent Decree is not a final judgment. Because \"a consent decree is a final judgment that may be reopened only to the extent that equity requires,\" Rufo, 502 U.S. at 391, 112 S. Ct. 748, the Court rejects all of Defendants' arguments contingent upon the Court's determining that the Consent Decree is not a final judgment for the claims on which it is based. See Williams v. Edwards, 87 F.3d 126, 130 (5th Cir.1996); Ho v. Martin Marietta Corp., 845 F.2d 545, 547 (5th Cir.1988). By definition, a consent decree is a final judgment for the claims it resolves, and its sui generis nature has seemingly caused confusion among Defendants. Additionally, Defendants received consideration for entering into the Consent Decree when they were allowed to extensively negotiate its terms and avoid trial. As the Fifth Circuit has recognized, \"[t]he very nature of a consent agreement is such that parties will agree to act in ways they do not believe the Constitution requires in order to save themselves the time, expense, and inevitable risk of litigation.\" Cooper v. Noble, 33 F.3d 540, 545 (5th Cir.1994) (quoting United States v. Armour & Co., 402 U.S. 673, 681, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971)). Defendants apparently determined that it was more beneficial to avoid the time and expense of trial, negotiate the terms, and enter into a consent decree rather than proceed to a trial on the merits and potentially be allowed minimal input regarding relief Plaintiffs may have sought. Defendants' argument that it received no consideration thus lacks merit; indeed, the converse is more accurate. Plaintiffs chose to enter into the Consent Decree rather than pursuing a trial on the merits, undoubtedly with the expectation that Defendants would comply with their obligations under the Consent Decree. Defendants now seek to have the Consent Decree dissolved in its entirety, despite their failure to even attempt compliance with certain provisions and recent failure to comply with others. See Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D.Tex.2000); see also discussion infra Part V (detailing Defendants' attempts to comply with the Consent Decree).\n[9] See discussion infra Part I(B)(3) for a detailed explanation of the parties' arguments.\n[10] For example: \"Under the doctrine of unclean hands, he who commits inequity is not entitled to equitable relief.\" Regional Properties, Inc. v. Real Estate Consulting Co., 752 F.2d 178, 183 (5th Cir.1985) (citations omitted).\n[11] The term \"single-bunking\" means assigning only one inmate to each cell. See Rufo, 502 U.S. at 374, 112 S. Ct. 748. The petitioners in Rufo also argued a change in law warranting modification, although Rule 60(b) analysis with respect to a change in law is inapposite to Defendants' Rule 60(b) Motion based on changed factual circumstances.\n[12] \"[T]he public interest is a particularly significant reason for applying a flexible modification standard . . . because such decrees `reach beyond the parties involved directly in the suit and impact on the public's right to the sound and efficient operation of its institutions.'\" Rufo, 502 U.S. at 381, 112 S. Ct. 748 (citing Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir.1989)). Indeed, the public interest is undoubtedly a significant concern in the context of the implementation of Texas' EPSDT program.\n[13] See discussion in Part IV, infra, for explication and application of the Rufo tailoring requirement.\n[14] Specifically, the Shapp Court modified the consent decree in the following three ways: (1) the strict numerical quotas for annual EPSDT screens, applicable for the years 1976 and 1977, were eliminated; (2) the related provision for payment of 133% of the cost of such screens to eligible but unscreened persons was eliminated; and (3) the defendants' duty to provide treatment for discovered abnormalities within 60 days of the EPSDT examination in which they were discovered was qualified by permitting relief from the obligation where good reason for a greater length of time is documented in the recipient's case record. 602 F.2d at 1119.\n[15] The Court notes that the Shapp Court also did not rely on the Pennsylvania EPSDT program's alleged exemplary performance; instead, its conclusions were based on the inability, after a good faith effort, to comply with the terms of the consent decree at issue.\n[16] Though Cooper involved prison litigation, a class of cases whose remedies are now governed by the standards set forth in 18 U.S.C. ง 3626, it illustrates the Fifth Circuit's standard for modification of consent decrees based on changed factual circumstances, under Rule 60(b), in the context of institutional reform litigation.\n[17] Indeed, the moving party must \"satisfy a heavy burden to convince a court that it agreed to the decree in good faith [and] made a reasonable effort to comply with the decree\" in order to be granted equitable relief under Rule 60(b)(5). Rufo, 502 U.S. at 383, 112 S. Ct. 748; see Sierra Club v. Meiburg, 296 F.3d 1021, 1034 (11th Cir.2002) (\"A party seeking to modify a consent decree has a high hurdle to clear and the wind in its face.\"). These good faith and reasonable effort requirements follow logically for a form of relief grounded in equity.\n[18] Specifically, Defendants argue that Texas Health Steps currently \"provide[s] for . . . informing\" all eligible class members and \"provide[s] for . . . the provision of\" all EPSDT services \"where they are requested,\" pursuant to 42 U.S.C. ง 1396a(a)(43). See Defendants' Rule 60(b) Motion at 10-15.\n[19] The term \"Urban Areas,\" as Defendants define it, refers to the counties served by the Medicaid managed care organizations (\"MCOs\") that have entered into the standardized Contract for Services with the Texas Health and Human Services Commission (the \"STAR Contract\"). See D. Ex. 49; D Ex. 51 (listing the following as STAR MCOs: Amerigroup (Dallas, Harris, Tarrant and Travis service areas); Community First (Bexar service area); Community Health Choice (Harris service area); El Paso First (El Paso service area); First Care (Lubbock service area); Parkland (Dallas service area); Superior (all service areas); Texas Children's (Harris service area)); P.Ex. MAN-2. The STAR Program is the name of the Texas Medicaid managed care program enacted by the State legislature. P.Ex. MAN-2 at 8-3.\n[20] In Defendants' Rule 60(b) motion, they also argue that the Court should account for the State's compliance with the terms of the decree in modifying it and remove provisions with no prospective application. Defendants' Rule 60(b) Motion at 7-21. Defendants' Post-Hearing Brief, however, specifically clarifies that Defendants seek only two alternative forms of relief. See Defendants' Post-Hearing Brief at 1-4. Defendants' closing argument at the June Hearing also omitted any mention of modification in part, other than complete dissolution with respect to the Urban Areas of the State. See Tr. Vol. VIII, pp. 76-88 (closing argument of Defendants' counsel). The Court thus interprets Defendants' failure to urge the arguments mentioned in their original Rule 60(b) motion as an abandonment of them. Alternatively, to the extent Defendants believe they have not abandoned these additional arguments, the Court finds that Defendants have failed to meet their burden to prove significant changed factual circumstances warranting modification of the Consent Decree. See discussion supra Part I(B)(2).\n[21] For a discussion of the Missouri v. Jenkins standard, see discussion infra Part I(B)(3)(a).\n[22] Defendants' argument can also be interpreted as asserting that compliance with federal law, by itself, is sufficient to warrant relief under Rule 60(b)(5). This alternative interpretation is addressed in Part I(B)(3)(c), infra.\n[23] In addition to moving to vacate the decree, the defendants moved to modify the consent decree to permit double-bunking and to remove female detainees from the Nashua Street Jail.\n[24] See Parton v. White, 203 F.3d 552, 556 (8th Cir.2000) (applying Rufo, the court found that changed factual circumstances, in the form of an unanticipated increase in the prison's inmate population, \"caused a significant housing shortage resulting in the use of makeshift or out-of-state housing, thus making compliance with the decree substantially more onerous and detrimental to the public interest.\").\n[25] See also National Labor Relations Board v. Harris Teeter Supermarkets, 215 F.3d 32 (D.C.Cir.2000) (denying the defendants' Rule 60(b) motion to vacate the consent decree). In Harris Teeter, a supermarket chain and the National Labor Relations Board (\"NLRB\") originally entered into a consent decree in response to allegations of labor law violations. The court found that the defendant failed to show how any alleged change (e.g., personnel changes, internal reorganization, and increase in facility size) made its compliance with the decree substantially more onerous, as required by the first of Rufo's three scenarios. In the course of finding that the defendant also failed to establish that the changed circumstances satisfied either of Rufo's other two scenarios, the court explained that \"self-imposed hurdles and hurdles inherent in a consent decree's entry do not count as `obstacles.'\" Harris, 215 F.3d at 36 (citing Rufo, 502 U.S. at 380-81, 112 S. Ct. 748). With respect to compliance, the court concluded: \"While we agree that good faith compliance certainly matters, extended compliance alone does not compel the modification of a consent decree. . . . Dowell and Rufo must be read together and the precedent leads us to conclude that compliance over an extended period of time is not in and of itself sufficient to warrant relief.\" Harris, 215 F.3d at 36 (citing Dowell, 498 U.S. 237, 111 S. Ct. 630, 112 L. Ed. 2d 715, and Rufo, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867). Although Harris Teeter does not involve institutional reform litigation, it is instructive with respect to this overview of how various courts determine whether significant changes in factual circumstances warranting revision of a consent decree exist.\n[26] The cases the Alexander Court cites for examples of reasonable periods of compliance found good faith compliance only after periods of compliance in excess of 10 years. 89 F.3d at 201.\n[27] See discussion infra Part III for an analysis of the performance of Defendants' STAR MCOs.\n[28] The CMS-416 was previously known as the \"HCFA-416\" (with reporting requirements established by the Health Care Financing Administration (\"HCFA\"), the predecessor of the Centers for Medicare and Medicaid Services (\"CMS\")). Beginning in 2002, the HCFA-416 was renamed the CMS-416. D. Ex. 94. The Court's references to the CMS-416 thus refer to either the HCFA-416 or the CMS-416, depending on the year for which the statistics are cited.\n[29] The Participation Ratio is the number of eligible children who receive a checkup as a percentage of the eligible children who should receive at least one initial or periodic checkup. D. Ex. 97 at 3. The Court takes judicial notice that a \"rate\" is the relationship between two measurements defined by different units, whereas a \"ratio\" is the relationship between two measurements usually defined by the same units. D. Ex. 97 at 24. The Court will employ the term \"participation rate\" to refer to the actual participation rate among class members, while \"participation ratio\" will refer to the statistic as reported on the CMS-416.\n[30] The Screening Ratio calculates the number of recommended screens administered as a percentage of the expected number of screens. D. Ex. 97 at 12.\n[31] As the Director of the Research and Public Health Assessment Office of the Department of State Health Services, Linda Bultman, Ph.D., is in charge of the statistical reporting group responsible for the calculations that appear on the CMS-416. Tr. Vol. III, pp. 156-57 (testimony of Dr. Bultman). Dr. Bultman is also in charge of research and surveillance (epidemiology) for the health service programs that deal with women, infants, and children; is responsible for the reporting for those same public health service programs; and is chair of the department's institutional review board for the protection of human subjects research. Tr. Vol. III, pp. 156-57 (testimony of Dr. Bultman). She holds a doctorate in exercise science from the University of Massachusetts and has taught statistics at both the undergraduate and graduate level at Kent State University. Id. at 158-59. The Court qualified Dr. Bultman as an expert in applied statistical analysis in the field of health care. Id. at 161.\n[32] Defendants, through Dr. Lachman, assert: \"Notwithstanding your encouragement, there will always be some patients who, for whatever reason, will not get immunizations.\" Tr. Vol. IV, p. 157 (testimony of Dr. Lachman). Indeed, the Fifth Circuit also commented that \"some children are unable or, for whatever reason, fail to take full advantage of the services.\" Frazar, 300 F.3d at 533. What Plaintiffs argue, with which Defendants disagree, is the sheer magnitude of underutilization of the services provided through Texas's EPSDT program. Neither the plaintiffs nor the Court assert that Defendants are responsible for providing services to those who do not want them; however, the facts found herein reveal that Defendants are failing to provide services to a substantial portion of the plaintiff class-a portion that Defendants have failed to prove choose not to take advantage of the services.\n[33] Cynthia Ruff, who testified by deposition, is an employee of the Centers for Medicare & Medicaid Services (\"CMS\"), U.S. Department of Health and Human Services. She is the federal official responsible for the review of the CMS-416. D. Ex. 141 at 1.\n[34] Plaintiffs' argument, and the Court's reasoning, now and in 2000, is based on simple division: keeping the numerator constant in a ratio, while reducing the denominator, increases the ratio. For example, a numerator of one over a denominator of two equals a ratio of one-half, or 50%; decreasing the denominator to one results in a fraction of one over one, resulting in a ratio of one, or 100%. Thus, Plaintiffs argue, accounting for average periods of eligibility by decreasing the denominator artificially inflates the reported participation ratio.\n[35] \"For example, according to a hypothetical presented by plaintiffs, if ten four-year-olds receive Medicaid for only six months (half a year), the participation ratio method mandated by HCFA would reduce the number of ten class members by one-half, to five. Thus, if the ten class members received five medical checkups, the participation ratio would be 1.0, or 100%, despite the fact that only one-half of the ten children eligible for the checkup had received the service. Defendants base their methodology on the assumption that not all of the ten children would be `due' for a checkup during their period of eligibility, as a four-year-old who had recently received a checkup just before being placed on the Medicaid program would not be `due.' Plaintiffs acknowledge this possibility, but argue that the vast majority of newly-eligible class members have not recently seen a doctor; hence, they argue, a more acceptable empirical assumption would be that all ten, or at least some high fraction of the ten, are in fact `due' upon enrollment. It is noted that only a well-supported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment will enable the parties to resolve their current disputes concerning the accuracy of the participation ratio as an indicator of actual receipt of services.\" Frew, 109 F.Supp.2d at 602, n. 34. The Court notes that Defendants presented no credible evidence at the June hearing regarding a well-supported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment; the Court thus declines to find that Defendants' assumption is superior to Plaintiffs.\n[36] See Defendants' Post-Hearing Brief at 19 (\"It is unfair to hold Defendants or a managed-care organization accountable for rendering services to a person if the person is not a beneficiary, and turnover in Medicaid programs nationally tends to be very high. When people are not part of the Medicaid program, the State or the managed-care organization should not be accountable for providing services to them.\" Tr. Vol. VI, p. 24 (testimony of Dr. Shenkman).). The Court notes that by compiling statistics which include class members excluded by CMS-416 calculations, Defendants are not being held accountable for non-Medicaid recipients; instead, statistics required by Consent Decree ถ 284 relate only to those actually enrolled in Texas Health Steps.\n[37] The Court acknowledges that the precise formula for calculating CMS-416 participation ratios is federally mandated and serves as a useful indicator of relative performance of States' EPSDT programs. The Court's rejection of participation ratios as the sole indicator of the overall performance is thus not a criticism of the figure itself; however, the CMS-416 participation ratio is only one piece of information that may be used to evaluate the Texas Health Steps program's performance rather than the sole indicator.\n[38] See, e.g., D. Ex. 97 at 5 (\"Georgia reported only 2.64 months of eligibility in the year, and eligibles age 1-2 reported just over two weeks eligibility for the year (0.03).\"); cf. D. Ex. 94 (describing Texas' average periods of eligibility). Stated simply, a State with a shorter average period of eligibility, to report the same participation ratio as a State with a longer average period of eligibility, would be required to provide EPSDT services to the same percentage of Medicaid recipients in a shorter amount of time; State-to-State comparisons will thus be skewed in favor of States with a longer average period of eligibility without the CMS-416's method of State-to-State standardization.\n[39] Accounting for average periods of eligibility \"recognizes that some children may have had other screenings during the year that were provided when the child was not eligible for medical assistance or that may have been provided by a third-party payer. It also recognizes that some children may not have been eligible for medical assistance at the point in time during the year that they would have been scheduled to be screened. . . .\" D. Ex. 141 at 3 (testimony of Cynthia Ruff). Plaintiffs again argue, however, that the most reasonable assumption is that \"the vast majority of newly-eligible class members have not recently seen a doctor, hence . . . a more acceptable empirical assumption would be that all . . . or at least some high fraction . . . are in fact `due' [for a medical checkup] upon enrollment.\" Frew, 109 F.Supp.2d at 602, n. 34. Defendants, at the June Hearing, however, did not provide \"a well-supported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment.\" Id. The Court thus finds that Defendants have failed to meet their burden to prove that the CMS-416 is an accurate, reliable reflection of actual participation rates among class members.\n[40] Piper Purcell is an employee of the Texas Medicaid Health care Partnership, which is a contractor of the Texas Health and Human Services Commission and is responsible for doing the billing and payment that is related to Medicaid. Tr. Vol. II, pp. 208-09 (testimony of Piper Purcell). Her calculations are reflected in D. Ex. 98.\n[41] As discussed, although the Court finds that discounting the denominator in the ratio based on average period of eligibility overstates the actual participation rate, the Court is simply pointing out the inconsistency in Defendants' calculations: if they rely on the reported participation ratio, which accounts for average period of eligibility in support of the Texas Health Steps program's performance, they must also discount the 8.5% figure to account for the same.\n[42] Defendants presented no evidence related to this assumption; similar to Defendants' argument with respect to accounting for average periods of eligibility, assuming that all children with \"other\" insurance receive their required checkups does not appear to be an acceptable empirical assumption. Cf. infra n. 39.\n[43] This distinction is crucial because the participation ratio reflects medical checkup utilization, whereas the utilization of dental services is reflected in a separate statistic on the CMS-416. As Defendants urge this 8.5% \"other\" insurance argument with respect to both medical and dental statistics, it is necessary to determine the breakdown between the types of \"other\" insurance class members allegedly have in order to determine the effect on the discrete statistics.\n[44] D. Ex. 94; D. Ex. 96.\n[45] As the Consent Decree was submitted to the Court for approval in 1995, the Court compares, to the extent possible, statistics for 1994 to those for 2004. Statistics for 2005 are not yet available, and statistics for 1994 best describe the state of Texas Health Steps at the time the parties submitted the Consent Decree to the Court in 1995.\n[46] Defendants object to Plaintiffs' initial calculation, which did not consider average period of eligibility. Plaintiffs argue that, to determine how many class members have not received medical checkups, the Court should subtract the total number of eligibles receiving at least one initial or periodic screen from the total number of individuals eligible for EPSDT. Defendants, however, argue that the Court should subtract the total number of eligibles receiving at least one initial or periodic screen from the total number of eligibles who \"should\" receive at least one initial or periodic screen, similar to the method prescribed by the CMS-416 formula. While the Court finds that the total number of class members not receiving at least one initial or periodic screen has increased from 631,451 in 1994 to 1,453,277 in 2004, it acknowledges that this number is an inflated estimate of the number of class members not receiving screening services to which they are entitled and due, because it does not exclude those either not due or who have received services from a source other than Texas Health Steps. D. Ex. 94; D. Ex. 96. By either calculation, the number of class members receiving no medical checkups is increasing at an alarming rate, despite the increase in reported participation ratio.\n[47] It should be noted that the parties have always anticipated a continued increase in the number of recipients of EPSDT benefits. See Consent Decree ถถ 1,4. Thus, the nearly 100% increase in class size since the instant lawsuit was filed does not constitute a significant changed circumstance warranting modification of the Consent Decree. Furthermore, each child is entitled to medical checkups according to a regular schedule; neither federal law nor the Consent Decree ties Defendants' obligations to a percentage of those eligible for EPSDT services.\n[48] Though this is essentially Defendants' argument, the Court notes that program success, alone, does not necessarily warrant relief under Rule 60(b). See Rufo, 502 U.S. at 392, 112 S. Ct. 748; Shapp, 602 F.2d at 1120; Cooper, 33 F.3d. at 544.\n[49] \"Plaintiffs' simplistic approach, however, compares apples to oranges, in that it ignores changes in the formula for calculating the participation ratio that occurred in 1999 and again in 2001.\" Defendants' Post-Hearing Brief at 23.\n[50] See D. Ex. 97 at 8-9 (describing the ways a state may manipulate the CMS-416 ratios, including a State's policy regarding the number of recommending medical screens and whether a State's data policy permits reporting in such a way as to exceed 100% participation).\n[51] Paragraph 171 provides: \"Defendants do not maintain records of the number of recipients who receive 1 or 2 dental check ups each year. The parties agree that by September 30, 1996, Defendants will prepare a report of the number and percent of recipients who receive 1 dental check up/year and 2 dental check ups/year. They will prepare similar reports every year.\"\n[52] Paragraph 284 provides: \"Every year from 1996 through 1999, Defendants will also report to Plaintiffs the number and percent of recipients who receive all of their scheduled medical check ups. They will further report the number and percent of recipients who receive all of their scheduled dental check ups. Defendants will provide these reports to Plaintiffs no later than December 31 of each year.\"\n[53] Indeed, Dr. Bultman, Cynthia Ruff, and Dr. Shenkman all testified that it is not appropriate to evaluate the provision of services to the Medicaid population, as required by Consent Decree ถถ 171 and 284 without determining what portion of a year the individuals are actually eligible for Medicaid. Tr. Vol. III, pp. 203-05 (testimony of Dr. Bultman); D. Ex. 141 at 1-2 (testimony of Cynthia Ruff); Tr. Vol. VI, pp. 24-25 (testimony of Dr. Shenkman). Though each of these defense witnesses deems the calculations \"inappropriate,\" none testified that they would be impossible to compile, nor do they testify that the degree of difficulty in their calculation has increased since the entry of the Consent Decree. See Rufo, 502 U.S. at 392, 112 S. Ct. 748. Defendants also note that \"Plaintiffs introduced no testimony by anyone . . . supporting the continued enforcement of Consent Decree paragraphs 171 and 284. . . .\" Defendants' Post-Hearing Brief at 32. However, the Court notes that Defendants have the burden of proof under Rule 60(b), Rufo, 502 U.S. at 383, 112 S. Ct. 748, which they have not met with respect to the requirements of Consent Decree ถถ 171 and 284.\n[54] See Frew, 109 F.Supp.2d at 612 (finding that \"[w]hen read in conjunction with paragraph 283, which mentions defendants' pre-existing duty to report participation ratios to HCFA, paragraph 284 requires defendants to provide plaintiffs with more information; namely, `the number and percent of recipients who receive all of their scheduled dental checkups.' Defendants' argument that HCFA Form 416 data fulfills their obligations under paragraph 284 is therefore rejected. Paragraph 284 makes clear that plaintiffs bargained for a very specific type of data in addition to the `calculations' or `approximations' already required by the HCFA.\" (quoting Consent Decree ถ 284).).\n[55] The Court reiterates that \"the complexities associated with collecting utilization data require the parties' continued collaboration in the design and implementation of this system. Plaintiffs must therefore collaborate with defendants in their pursuit of the required number and percent.\" Frew, 109 F.Supp.2d at 612 (quotations omitted).\n[56] Dr. Bultman also testified that CMS-416 statistics are the \"best measures\" of the program's performance, Tr. Vol. IV, p. 20-22 (testimony of Dr. Bultman); however, this does not help prove that non-CMS-416 statistics either misrepresent actual participation rates or are more difficult to compile than when the Consent Decree was entered. Given that Defendants have failed to compile statistics relating to the class members excluded from the CMS-416 calculations, it is not difficult to believe that CMS-416 statistics are currently the \"best measures.\" Additionally, questions regarding the utility of various statistics need not be phrased in an \"either-or\" manner; even if the CMS-416 ratios are the \"best measures\" of the program's overall performance, Plaintiffs' assertion that additional statistics would be informative and paint a more accurate picture of the program's overall performance is not foreclosed.\n[57] See Hutto v. Finney, 437 U.S. 678, 685, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978) (cited in Frew, 540 U.S. at 439-40, 124 S. Ct. 899) (\"When the officials [in Hutto] refused to comply in good faith with the order, the District Court awarded attorney's fees to the prisoners' lawyers to be paid from the state treasury.\"); see also Alberti v. Klevenhagen, 46 F.3d 1347, 1357-58 (5th Cir.1995).\n[58] Compliance with the Consent Decree is relevant, however, when determining whether Defendants have made \"reasonable efforts to comply with the judgment.\" See Cooper, 33 F.3d at 544. See also discussion infra Part V (discussing Defendants' reasonable efforts to comply with the Consent Decree).\n[59] Relative comparisons to other States are not necessarily unreliable for provision of dental services, in contrast to CMS-416 participation ratios. As discussed in Part II(A)(2)(c)(ii), CMS-416 participation ratios are unreliable because the calculation itself is unreliable with respect to Texas Health Steps, and a relative comparison to other States is unreliable because States may manipulate their participation ratios. However, provision of dental services is submitted as a raw number on the CMS-416, as opposed to a ratio, and the average period of eligibility is thus not considered in the statistics reported. Furthermore, States' ability to manipulate the statistic, as explained by Dr. Bultman, does not apply to dental services statistics because they are reported in raw number format. D. Ex. 97. States must provide the total number of eligibles receiving various types of dental services, a figure unaffected by individual States' periodicity schedules or average periods of eligibility. But, because the Court finds that Defendants' only relative comparison is substantially manipulated, and thus unreliable, it declines to determine whether accurate State-to-State comparisons of CMS-416 dental statistics evidence Texas Health Steps' dental program's superior relative performance.\n[60] The Court emphasizes that Table 3 is not prepared directly from States' CMS-416s; the CMS-416 requires only the following dental statistics: \"Total Eligibles Receiving Any Dental Services,\" \"Total Eligibles Receiving Preventive Dental Treatment Services,\" and \"Total Eligibles Receiving Dental Treatment Services.\" D. Ex. 96. Dr. Shenkman, Defendants' expert witness, manipulated the data and calculated a \"dental participation ratio\" modeled on the CMS-416 medical participation ratio formula, based on Texas' EPSDT eligibility requirements. D. Ex. 97; D. Ex. 99.\n[61] Defendants' Post-Hearing Brief at 30; see D. Ex. 94; D. Ex. 96; D. Ex. 97 at 10.\n[62] The Court again notes that \"dental participation ratio\" is not submitted on the CMS-416; instead, it is calculated by dividing \"total individuals eligible for EPSDT\" by one of the dental service statistics. See D. Ex. 94; D. Ex. 96.\n[63] In 1993, the only line on the HCFA-416 relating to dental services was labeled \"Number of eligibles receiving preventive dental services.\" D. Ex. 94. In 1994 and 1995, the dental line was labeled \"Number Receiving Dental Assessments.\" Id. However, in 1996 it was again labeled \"Preventive Dental Services,\" before returning to \"Dental Assessments\" in 1997 and 1998. Id. Beginning 1999, and continuing through 2004, the HCFA/CMS-416 included three dental service lines: \"Total Eligibles Receiving Any Dental Services,\" \"Total Eligibles Receiving Preventive Dental Treatment Services,\" and \"Total Eligibles Receiving Dental Treatment Services.\" Id. The Court will thus interpret the 1994 figure entitled \"Number Receiving Dental Assessments\" as the equivalent of \"Number of eligibles receiving preventive dental services,\" a category also included in the 2004 CMS-416. D. Ex. 96.\n[64] The number of eligibles receiving preventive dental services in 1993 was 160,284; the number of individuals eligible for EPSDT in 1993 was 1,330,465. D. Ex. 94. The \"dental participation ratio\" for 1993 was thus approximately 12%.\n[65] The Consent Decree paragraphs relating to outreach and informing include ถถ 10-74.\n[66] However, with respect to Cooper's requirement that Defendants must \"show that those changed occurred despite the county officials' reasonable efforts to comply with the judgment,\" 33 F.3d at 544, the Court must determine whether Defendants have reasonably attempted to provide \"effective\" outreach, as required by the Consent Decree. See discussion infra Part IV, for a discussion of Defendants' efforts to comply with the Consent Decree.\n[67] Because Defendants entered into a contract with Maximus in 1999, 2000 is the first year for which the parties presented evidence regarding Maximus' outreach and informing efforts; but Defendants did not present evidence of their pre-2000 outreach and informing efforts. In order to determine whether factual circumstances have significantly changed since the entry of the Consent Decree, then, the Court refers to findings of fact contained in the 2000 opinion.\n[68] Maximus' role as enrollment broker is discussed in Part III(B), infra.\n[69] Defendants' Post-Hearing Brief at 8. Defendants also presented substantial evidence of other types of outreach activities, including, inter alia, organizing and attending health fairs and community events, attending family or parent meetings at Head Start programs, meeting with parent groups or children groups through school districts, scheduling medical and dental appointments and visiting class members at Women, Infants and Children Nutrition Program (\"WIC\") offices. D. Ex. 145 at 3-4; Tr. Vol. I, pp. 59-60 (testimony of Melinda Metteauer). Defendants, however, have failed to present sufficient evidence to prove the necessary amount of such outreach and whether or how it affects class members' education about, or utilization of, Texas Health Steps services. From the evidence presented, the Court has been given to understand that these types of outreach activities are a relatively minor part of Maximus' outreach program design. While the Court considers these efforts in determining whether Defendants have satisfied Rufo's requirements, the Court's determination is chiefly based on the three most significant pieces of Maximus' project design: telephone contact, mail-outs, and in-home visits. However, it is noted that the number of community events attended has increased significantly, from 1,470 in 2000 to 16,652 in 2004. D. Ex. 23. With no evidence relating to how much of these activities are necessary to provide Texas Health Steps services to a class of more than 2.7 million, the Court does not find that these increases in outreach and informing activities constitute significant changed factual circumstances warranting revision of any specific provision of the Consent Decree. Similarly, the number of medical or dental appointments scheduled has significantly increased from 8,886 in 2000 to 59,284 in 2004. D. Ex. 23.\n[70] Plaintiffs argue that Defendants' operation of only one call center, located in Austin, violates Consent Decree ถ 26, which states: \"An outreach unit is the entity responsible for oral outreach in a geographic area of Texas. An outreach unit can be either (a) an agency that contracts with TDH to provide oral outreach services or (b) TDH staff.\" The Court will refrain from determining whether operation of only one call center violates Consent Decree ถ 26.\n[71] Predictive-dialer technology automatically places calls to class members' phone numbers. Tr. Vol. 1, pp. 53-55 (testimony of Melinda Metteauer). \"[I]t conserves the time of the call center counselor so that their time is spent only talking to clients, not waiting for a phone to ring.\" Id. at 54.\n[72] For example, from September 2003 through August 2004, the highest monthly percentage of contacts was 17.2 percent of numbers dialed. D. Ex. 24 at 2. Out of a total of 21,453 total number of case names, only 3,682 were actually contacted in August 2004 using Defendants' predictive dialer technology. Id. While the Court commends Defendants and Maximus for employing new technologies to accomplish outreach and informing, sheer numbers of outbound calls are not the mark of success; instead, these calls must actually be answered, and the class member contacted must be provided with the information Defendants, through Maximus, aspire to provide.\n[73] In other words, Plaintiffs argue that the predictive-dialer places the calls, although no staff is available to talk to any class members who then answer the calls.\n[74] In Defendants' Post-Hearing Brief, they recount the sum of the total inbound calls received and the sum of calls they answered between 2000 and 2005, apparently as an indication of the success of their call center. The Court notes, though, that a raw sum of five years of calls is entirely irrelevant to prove the requirements of Defendants' Rule 60(b) motion. It does not take into account the size of the class, does not provide any standard by which to measure whether the numbers they cite are sufficient to prove Defendants' provision of outreach and informing services, nor does it prove changed circumstances.\n[75] \"Abandonment rate\" and \"wait in queue\" are two important criteria in evaluating a toll-free number's performance. See Frew, 109 F.Supp.2d at 644. \"Abandonment rate\" is the percentage of callers who hang up before speaking to a live person, while \"wait in queue\" is how long the caller must wait to talk to a person once the call is initially answered. Maximus' Texas Health Steps toll-free line had an average abandonment rate of 8.58% for 2004, up from 7.26% in 2000. D. Ex. 23. The Court notes that Maximus has not exceeded a 10% abandonment rate for any month in the years 2000-04. Tr. Vol. I, p. 49 (testimony of Melinda Metteauer); D. Ex. 23; see Frew, 109 F.Supp.2d at 644. The average wait in queue for the Texas Health Steps hotline in 2000 was 26.13 seconds; but, it increased to 66 seconds by 2004. D. Ex. 24 at 1.\n[76] While the Court agrees that in-home visits are an effective means of outreach, it does not find that in-home visits should constitute any specific portion of Defendants' efforts. Instead, it analyzes any change in numbers of in-home visits purely to determine whether significant changed factual circumstances warranting revision of the Consent Decree exist. Plaintiffs and Defendants disagree on the proper mix of outreach methods; thus, the Court declines to pass judgment on this issue, as it is beyond both the scope of this motion and beyond the four corners of the Consent Decree. See United States v. Armour & Co., 402 U.S. 673, 682, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971); Rule 60(b)(5).\n[77] During the December 1995 hearing, the Court ruled that Dr. Moore was an expert in the field of public health as it applies to the issues in this lawsuit. Without objection, the Court again ruled at the June hearing that he continues in that capacity. Tr. Vol. IV, p. 34 (testimony of Dr. Moore). Dr. Moore is a Professor at the University of Texas School of Public Health and has been on the faculty there since 1977. Id. at 40. He was staff to the United States Senate Committee that drafted the original Medicaid Act and has also been actively involved in the training and assessment of outreach workers. Id. at 53, 111. In addition to his own extensive experience in the field, Dr. Moore relied on a 2005 Cohrane Collaboration review of the effectiveness of face-to-face outreach by community-based workers in arriving at his conclusions about in-home visits. Id. at 65. The Collaboration concluded that community-based outreach workers are effective in improving utilization of preventive health care. Tr. Vol. IV, pp. 65-66 (testimony of Dr. Moore).\n[78] For example, Dr. Moore testified that Maximus' and STAR MCOs' outreach and informing plans rely too heavily on telephone contact and emphasize process over results. See Tr. Vol. IV, p. 51 (testimony of Dr. Moore).\n[79] While the Fifth Circuit noted the magnitude of Texas' outreach and informing expenditures, Frazar, 300 F.3d at 533, it did not imply that expenditure alone is a sufficient measure of Texas' outreach and informing performance. Indeed, expenditure, alone, is always a poor proxy for success.\n[80] Rule 60(b) does not permit Defendants to simply prove that the MCOs are comparable to the national average for MCOs, assert that such a finding necessitates a finding of compliance with federal law, and thus be entitled Rule 60(b) relief; as discussed in Part I(B)(3)(c), Rule 60(b) is not simply a second chance for Defendants to litigate Plaintiffs' claims on the merits. Because Defendants' only asserted basis for warranting relief under Rule 60(b) is compliance with federal law, which the Court rejects, the Court will attempt to analyze Defendants' evidence under the appropriate Rule 60(b) standard, in such a way as to preserve their argument and arrive at an equitable result.\n[81] Defendants also make multiple arguments comparing STAR MCO performance to commercial managed care. The Court makes no findings of fact with respect to these arguments because relative performance between Medicaid managed care and commercial managed care is not in issue; Defendants, through their alternative demand that the Consent Decree be dissolved as to only Urban Areas under managed care, seek to draw a distinction either between Medicaid managed care and non-managed care Medicaid, or between Medicaid managed care and the Texas Health Steps program as a whole. As the Court has found that significant changed factual circumstances warranting modification of the Consent Decree do not exist with respect to Texas Health Steps as a whole, Defendants must distinguish their managed care program in order to warrant relief. Consequently, comparisons between STAR MCOs and either other States' MCOs or commercial managed care are irrelevant.\n[82] More specifically, the Court found that Defendants were in violation of Consent Decree ถ 190, for the failure to provide the \"timely receipt of the full range of EPSDT services, including but not limited to medical and dental checkups,\" and in violation of Consent Decree ถ 192 for failing to \"assure medical and dental checkups in a timely manner to all [managed care] recipients.\" Frew, 109 F.Supp.2d at 631, n. 105.\n[83] \"In 1999, the Texas legislature declared a moratorium on the further expansion of managed care for class members and other Texas Medicaid recipients. However, a future continuation of the `rollout' of managed care is considered likely by all parties.\" Frew, 109 F.Supp.2d at 618, n. 73 (citations omitted). The parties' prophecy has been realized; managed care organizations currently operate in nine Texas regions, and Defendants plan to expand managed care throughout Texas in the fall of 2005. P.Ex. MAN-2; P.Ex. MAN-3; P.Ex. MAN-4.\n[84] For example, Defendants argue that managed care-whether commercial or not-always creates administrative burdens. Tr. Vol. VII, pp. 14-15 (testimony of Dr. Hellerstedt). These burdens include establishing a particular network of providers, the requirement for prior authorization for specialist care, elective admissions and expensive diagnostic tests, and preferred drug formularies. Id. MCOs also limit provider choice by requiring patients to make selections from its network of providers. Id. at 15. However, Defendants argue, managed care provides benefits that compensate for its administrative burdens; the main benefit is the ability to provide a medical home. Id. at 16. For example, in theory, the existence of a medical home allows the primary care provider to know about the other medical services that the patient is receiving and thus provide more effective health care. Id.\n[85] See Frew, 109 F.Supp.2d at 618-19 (describing more extensive managed care program characteristics generally).\n[86] The Court notes that not all STAR MCOs require PCP approval, known as a referral, to visit a specialist. See Tr. Vol. V, p. 22 (testimony of Kim Nettleton) (Community Health); Tr. Vol. II, pp. 121-22 (testimony of Paige Alvarado) (First Care).\n[87] See, e.g., Tr. Vol. II, p. 102 (testimony of Paige Alvarado) (First Care) (stating the that capitated fee model is preferable); Tr. Vol. II, p. 197 (testimony of Aron Head) (Amerigroup).\n[88] Defendants did not present evidence regarding how they initially determine eligibility. Maximus works with a list created by the State, but the Court has not been made aware of the process by which the State creates the list. This is particularly troubling, since compiling an accurate and complete list of Medicaid-eligible class members is one of the most crucial steps in EPSDT outreach.\n[89] Additionally, Defendants presented a report entitled \"Parents' Satisfaction with their Children's Health Care in the STAR MCO Program,\" D. Ex. 88, and also one entitled \"STAR Statewide Enrollee Satisfaction Report,\" D. Ex. 89. While the Court commends Defendants for having such reports prepared in an effort to improve the STAR MCO program, they are beyond the limited scope of the current question before the Court. The Court, in the exercise of judicial restraint, need only determine whether STAR MCO performance is so successful compared to that of non-managed care Medicaid as to warrant relief under Rule 60(b). Findings of fact relating to parents' satisfaction with STAR MCOs is, therefore, beyond the scope of Defendants' alternatively demanded relief under Rule 60(b), for the reason that Defendants did not present any evidence relating to the satisfaction of parents of children enrolled in traditional fee-for-service Medicaid. See P.Ex. 7, 8 (explaining traditional, fee-for-service Medicaid and Medicaid managed care).\n[90] Accordingly, many of the details regarding what STAR MCOs do in theory will be disregarded in favor of an analysis of the results those theories have attained. While the policies of the various managed care organizations are germane in the sense that it shows they desire to provide certain services, the policies themselves do not necessarily prove the efficacy of the policies or reflect an outcome constituting changed circumstances or otherwise warranting relief under Rule 60(b). Instead, the Court's analysis is outcome-based, looking to evidence which may show Plaintiffs' superior access to, and the enhanced effectiveness of, STAR MCO services.\n[91] Barry Lachman, M.D., is the medical director for Parkland. Dr. Lachman is a pediatric physician who has performed approximately 3,000 Texas Health Steps checkups. He is an expert in the areas of pediatric medicine, public health, and Medicaid managed care organizations. Tr. Vol. IV, pp. 118-20 (testimony of Dr. Lachman).\n[92] Defendants, through Dr. Lachman, described a situation in which an out-of-network referral was accomplished: a member needed an intestinal transplant, but at that time, no physicians in the State of Texas were performing intestinal transplants. Parkland arranged for the member to travel to Miami and receive the transplant. Tr. Vol. IV, p. 147 (testimony of Dr. Lachman). The Court commends Parkland and Defendants for succeeding in this referral.\n[93] Kim Nettleton is the Vice-President of Operations for Community Health Choice. Tr. Vol. IV, p. 180 (testimony of Kim Nettleton).\n[94] Martin Jimenez is the Director of Network Management for Community First.\n[95] Paige Alvarado is the Manager of Regional Government program at First Care. Tr. Vol. II, p. 94 (testimony of Paige Alvarado).\n[96] On occasion, a pediatrician or primary care physician may close his practice to all new patients, including Medicaid patients, but in these situations the provider must give 30-day written notice to First Care, which then follows a procedure of reporting the information to Maximus on a monthly basis. Tr. Vol. II, p. 100 (testimony of Paige Alvarado). When they close their panel, they are continuing to see their current members; they are just not accepting new members. Id.\n[97] Aron Head is the Provider Service Director for Amerigroup in the Dallas/Fort Worth area. Tr. Vol. II, p. 151 (testimony of Aron Head).\n[98] The NCQA is a commission that \"gathers data from Medicaid managed care plans nationally and compiles them.\" D. Ex. 82 at 3. The NCQA also establishes HEDIS technical specifications. Id.\n[99] Because the average period of Medicaid eligibility in 2003 and 2004 was .74 years (just under nine months), most class members do not qualify for Medicaid for 12 consecutive months. D. Ex. 94; D. Ex. 96. Again, while the Court understands the need for standardization of statistics to permit the most accurate State-to-State comparisons, such a standardization measure is unnecessary to assess the relative success of intra-state EPSDT plans. Furthermore, the Court has acute reservations relating to acceptance of statistics that exclude a majority of class members from their computation as being representative of STAR MCOs' overall performance. However, because HEDIS statistics are the only evidence that was presented that in any way permits relative comparisons between managed care and non-managed care Medicaid, the Court proceeds with its analysis based on the HEDIS statistics proffered by Defendants.\n[100] The EQRO's most recent Chart Book, D. Ex. 82, compiles data from December 1, 2003, to November 30, 2004.\n[101] The Court is particularly disturbed that the last time Defendants requested the EQRO to study the issue of checkup completeness, for SFY 2001, the EQRO did not find a single complete medical checkup among all of the managed care medical records that it reviewed. P.Ex. MAN-E-10, App. D. The EQRO has not repeated the prior EQRO's study about medical checkup completeness since 2001 to determine whether STAR MCOs currently provide complete Texas Health Steps checkups. Tr. Vol. VI, pp. 35-36 (testimony of Dr. Shenkman). These findings bolster the Court's finding that \"well child\" checkup statistics are inflated.\n[102] See discussion supra pp. 79-80.\n[103] See P.Ex. 7, 8 (explaining traditional, fee-for-service Medicaid and Medicaid managed care).\n[104] Specifically, with respect to STAR MCO Program Quality of Care, the EQRO compiles statistics for: \"HEDIS Well-Child Visits in the First 15 Months of Life;\" \"HEDIS Well-Child Visits in the 3rd, 4th, 5th, and 6th Years of Life;\" \"HEDIS Adolescent Well-Care Visits;\" \"HEDIS Prenatal Care;\" \"HEDIS Postpartum Care;\" \"HEDIS Breast Cancer Screening;\" \"HEDIS Cervical Cancer Screening;\" \"HEDIS Use of Appropriate Medications for People with Asthma;\" \"HEDIS Follow-Up After Hospitalization for Mental Illness;\" \"Readmission Within 30 Days After Inpatient Stay for Mental Health;\" \"HEDIS Comprehensive Diabetes Care;\" and \"HEDIS Appropriate Testing for Children with Pharyngitis.\" D. Ex. 82 at Chart 7-19.\n[105] In response to STAR MCOs' poor results in this statistic, the EQRO recommended that Defendants evaluate barriers that inhibit use of mental health care in Defendants' managed care companies. Tr. Vol. VI, p. 43 (testimony of Dr. Shenkman).\n[106] The Court, however, notes that STAR MCOs have made significant improvement in the area of follow-up after hospitalization for mental illness. STAR MCOs improved from 16.16% to 34.51% and from 31.25% to 62.8% for 7-day and 30-day follow-up, respectively, over the course of two years. Id. at 24. But, STAR MCOs' current performance remains inferior to that provided for FFS-TANF recipients, thus failing to support a finding of significant changed circumstances warranting revision of the Consent Decree or otherwise finding that STAR MCOs' performance is superior to non-managed care Medicaid in Texas.\n[107] Specifically, the EQRO compiles charts comparing the following measures: \"Percent of Enrollees with One or More Hospital Stays Due to an Ambulatory Care Sensitive Condition;\" Percent of Hospitalizations with a Primary Diagnosis of an Ambulatory Care Sensitive Condition; \"Percent of Enrollees with One or More Emergency Department Visits Due to an Ambulatory Care Sensitive Condition;\" and \"Percent of Emergency Department Visits with a Primary Diagnosis of an Ambulatory Care Sensitive Condition.\" D. Ex. 82.\n[108] The Court notes that ACSC is not a HEDIS statistic; thus, \"national comparison data are not available for this measure.\" D. Ex. 82 at 8.\n[109] Defendants argue that this statistic is not indicative of STAR MCO members' access to care, because relatively small numbers of MCO members visit the hospital multiple times for ACSCs, thus inflating the statistic. See Tr. Vol. VI, p. 13 (testimony of Dr. Shenkman). Indeed, \"on average each enrollee who experienced and [sic] ACSC [emergency department] visit had 1.42 [emergency department] visits during the measurement year.\" D. Ex. 82 at 10. While Defendants' assertion is supported by the evidence, members' multiple emergency department visits for ACSCs is not unique to STAR MCOs; thus, a relative comparison of STAR MCOs to FFS-TANF is unaffected by this phenomenon.\n[110] While Defendants' alternative demand for relief applies only to those areas covered by managed care, the ramifications of the demanded relief would be ubiquitous. Because a majority of Texas' EPSDT beneficiaries is located within the Urban Areas, the Court's granting of the alternatively demanded relief would effectively dissolve the Consent Decree for at least 57% of Texas Health Steps eligibles. D. Ex. 96. The Court notes the effect of the demanded relief to illustrate that Defendants' alternative forms of relief are essentially equally radical, and cannot be said to request minor changes in extraneous details. See Rufo, 502 U.S. at 383, n. 7, 112 S. Ct. 748.\n[111] The Shapp Court reiterated that the evidence showed that \"Pennsylvania performed the highest number of screens in absolute terms of any state in the nation, and ranked eighth in terms of the percentage of eligible persons screened. . . . [T]he Pennsylvania EPSDT program was among the 5 or 6 best programs in the country.\" 602 F.2d at 1118.\n[112] This finding is not necessarily independent of the Court's finding that the first Rufo requirement, significant changed factual circumstances warranting modification of a consent decree, is not satisfied. See infra Part II and III. Cooper's requirement that a party show that the changed factual circumstances affect compliance with, or the workability or enforcement of, the final judgment, can be interpreted as merely a restatement of Rufo's requirement that a party show significant changed circumstances warranting modification of a consent decree. See Cooper, 33 F.3d at 544; Rufo, 502 U.S. at 392, 112 S. Ct. 748. The Court addresses Cooper's iteration of the Rule 60(b) standard separately, however, in the spirit of full analysis of Defendants' claims under the applicable Fifth Circuit standard.\n[113] The flexible standard for modification of consent decrees allows Defendants to prove less than would be required under a strict reading of Rule 60(b). For example, when a party seeks modification of a consent decree provision on the ground that the provision is unworkable because of unforeseen obstacles and cannot be reasonably satisfied, Rufo, 502 U.S. at 384, 112 S. Ct. 748, it is not necessary that the court have before it evidence of the precise circumstances that existed when the parties agreed to the provision. It is enough that when they agreed to the provision in question, the parties believed it would be possible to comply, but good faith effort and experience has proven that it is not. In other words, the fact that a provision of a consent decree has proven to be unworkable is itself a significant change in circumstances. See, e.g., Reynolds v. McInnes, 338 F.3d 1221, 1228-29 (11th Cir.2003). But, in the instant case, Defendants presented no evidence of even a minor attempt at compliance the above-listed provisions of the Consent Decree and have thus failed to prove that any provision is unworkable. Cf. id. at 1229.\n[114] Plaintiffs also assert that Defendants' justification for discontinuing the letters appears to be pre-textual. For example, argue Plaintiffs, although Defendants claim to have received about 200 complaints, they only produced evidence of 110 complaints during discovery. P.Ex. O-13 (filed under seal); Defendants' Post-Hearing Brief at 16-17. When the complaints are broken down by topic, only 17 of them reported discomfort with the letters' language. The remaining 93 asked to have the letters stopped for other reasons, such as: the child had died (9); the child was adopted and lives elsewhere (3); the child does not have Medicaid (3); the child was not at that address or had moved (12); etc. P.Ex. O-13 at 1; Plaintiffs' Post-Hearing Brief at 14.\n[115] Additionally, Defendants were found to be in violation of multiple provisions of the Consent Decree in 2000. See Frew, 109 F.Supp.2d at 579. Therefore, Defendants could not even theoretically have been in compliance with the Consent Decree for more than five years (which, of course, the Court does not find). The Court, consistent with the Alexander Court's analysis, finds that such a short period of compliance would, nevertheless, be insufficient to warrant relief under Rule 60(b). See 89 F.3d at 201; see Harris, 215 F.3d at 36 (\"While we agree that good faith compliance certainly matters, extended compliance alone does not compel the modification of a consent decree. . . .\"). Plaintiffs argue that Defendants continue to violate provisions of the Consent Decree not necessarily addressed by the Court's 2000 Opinion. See Plaintiffs' Post-Hearing Brief at 10-11. While the Court does not determine whether Plaintiffs' assertions are meritorious, it is sufficient, for purposes of Defendants' Rule 60(b) motion, to find that Defendants made no reasonable attempt to comply with the Consent Decree.\n\n", "ocr": false, "opinion_id": 2500420 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0529-67", "author_id": 1911, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n AMERICAN PETROLEUM )\n INSTITUTE, )\n )\n Plain tiff/C 0 un terclaim )\n Defendant, )\n )\n v. ) Civil Case No. 09-529 (RJL)\n )\n TECHNOMEDIA INTERNATIONAL, )\n INC., )\n )\n Defendant/Counterclaim )\n Plaintiff. )\n\n\n ORDER fL.. ----\n For the reasons set forth in the Memorandum Opinion, it is this .:sUday of March,\n2010, hereby\n\n ORDERED that API's Motion to Dismiss Counts 1-3 and 5-6 of TechnoMedia's\nAmended Counterclaim Pursuant to Fed. R. Civ. P. 12(b)(6) [#39] is GRANTED in part\nand DENIED in part; it is further\n\n ORDERED that Count I of the Amended Counterclaim is DISMISSED with\nprejudice, except as to TechnoMedia's claim that API is wrongfully withholding\nTechnoMedia's trade secrets; it is further\n\n ORDERED that Counts 2,3,5, and 6 of the Amended Counterclaim are\nDISMISSED with prejudice; it is further\n\n ORDERED that API's Motion to Strike Allegations of the Amended\nCounterclaim Pursuant to Fed. R. Civ. P. 12(f) [#39] is GRANTED; it is further\n\n ORDERED that all allegations in the Amended Counterclaim concerning any\nassociation between API and Ecoman or between API and the Islamic Republic of Iran-\nincluding, without limitation, the allegations contained at pages 1-2 and at paragraphs 30-\n35, 77(d), 80(e), and 87 of the Amended Counterclaim-are hereby STRICKEN; it is\nfurther\n\f ORDERED that TechnoMedia's Application for Preliminary Injunction [#23] is\nDENIED; and it is further\n\n ORDERED that TechnoMedia's Motion for Leave to File Deposition Transcript\nExcerpts of Patrick Quinn in Support of TechnoMedia's Application for Preliminary\nInjunction [#62] is DENIED.\n\n SO ORDERED.\n\n\n\n\n RICHA . EON\n United States District Judge\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 2666152 } ]

[ "475 P.2d 415", "257 Or. 62" ]

[ { "author_str": "Howell", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5505, "opinion_text": "\n475 P.2d 415 (1970)\nGREAT AMERICAN INSURANCE COMPANY, a Corporation, Respondent,\nv.\nGENERAL INSURANCE COMPANY OF AMERICA, a Corporation, Appellant.\nSupreme Court of Oregon, In Banc.\nArgued and Submitted July 14, 1970.\nDecided October 14, 1970.\n*416 Thomas M. Triplett, Portland, argued the cause for appellant. With him on the briefs were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.\nHoward M. Feuerstein, Portland, argued the cause for respondent. With him on the brief were Don H. Marmaduke, and Davies, Biggs, Strayer, Stoel & Boley, Portland.\nBefore O'CONNELL, C.J., and SLOAN[*], DENECKE, HOLMAN[**], HOWELL, SCHWAB, and LANGTRY, JJ.\nHOWELL, Justice.\nThis is an action by plaintiff to recover prorata contribution from the defendant for the satisfaction of a judgment arising out of an accident in which plaintiff's insured was found liable. The trial court, sitting without a jury, entered a judgment requiring prorata contribution and defendant appeals.\n*417 In 1962 the defendant, General Insurance Company, issued an insurance policy to the Oregon State Highway Commission insuring the following:\n\"Members of the Oregon State Highway Commission, and all of its or their officers, agents and employees, while acting in the course of their employment or while in the performance of their official duties in good faith and without malice for the Oregon State Highway Department, Salem, Oregon.\"\nThe liability for damages because of injury or destruction of property was limited to $50,000. The policy also included an \"Other Insurance\" clause which stated:\n\"If the insured has other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss.\"\nThe Highway Commission decided to improve a section of the Coos Bay-Roseburg highway, and C.R. O'Neil was awarded the contract. O'Neil was insured under a liability policy issued by plaintiff, and the policy also included a similar \"other insurance\" clause.\nOn June 19, 1963, an accident occurred on the section of highway under construction when a truckload of cattle slid off the highway and overturned. The owners of the truck and cattle brought an action for damages against O'Neil and the State Highway Commission. The action against the commission was dismissed on the basis of sovereign immunity, but a judgment was entered against O'Neil, plaintiff's insured, for $18,094. The plaintiff made a demand upon the defendant for a prorate contribution of the loss and the demand was refused. Plaintiff then filed this action, contending that O'Neil was an insured within the meaning of defendant's policy insuring \"agents and employees\" of the Oregon State Highway Commission. The trial court found that O'Neil was an insured under the defendant's policy and that the loss should be prorated.\nThe first question presented in this appeal is whether O'Neil was an agent or an employee of the State Highway Commission within the meaning of defendant's policy with the commission.\nThe highway project was let on a competitive bid basis and O'Neil was awarded the contract. Because the project was considered a minor improvement job, the commission decided to rent the O'Neil equipment and to pay for hours of equipment time. The contract between O'Neil and the commission consisted of the Standard Specifications for Highway Construction, Special Provisions relating to the particular project, and maps or drawings. O'Neil was to supply the laborers, and it was his responsibility to carry workmen's compensation on the men. He was also required to post a bond.\nGenerally, the test for determining whether one is a servant or an independent contractor is based not on the actual exercise of control by the employer, but on the right to control. Herff Jones Co. v. State Tax Commission, 247 Or. 404, 409, 430 P.2d 998 (1967); Nordling v. Johnston, 205 Or. 315, 332, 282 P.2d 994, 287 P.2d 420 (1955). Where the employer has no right to control his actions, the actor is usually deemed to be an independent contractor. Wallowa Valley Stages, Inc. v. Oregonian, 235 Or. 594, 598, 386 P.2d 430 (1963). The exercise of some limited control by the employer over the work being done will not necessarily make the worker an employee rather than an independent contractor. Jenkins v. AAA Heating, 245 Or. 382, 386, 421 P.2d 971 (1966). The test of right to control does not refer to the right to control the results of the work but rather to the right to control the manner and means of accomplishing the result. Wallowa Valley Stages, Inc. v. Oregonian, supra 235 Or. at 599-600, 386 P.2d 430.\nThe special provisions of the contract relating to \"clearing, grubbing, grading and *418 drainage work,\" and including also flaggingand traffic control, required the work to be done \"as directed by the engineer\"; the type and amount of equipment to be used \"as considered necessary by the engineer\" and only \"at such times and places as the engineer may direct\"; The Details of Work portion of the contract provided that performance of the work should be done in accordance \"with the instructions of the engineer\" and that the work be performed \"in accordance with recognized standards and efficient methods and shall be subject at all times at the direction of the engineer.\" The evidence disclosed that sprinkling on the road had been conducted shortly before the truck slid off the road. The special provisions of the contract relating to sprinkling provided that the contractor should perform the sprinkling work \"as the engineer may direct\" and that \"the sprinkling work shall at all times be subject to the control of the engineer.\" \"It shall be done only when and where directed by the engineer, and the rate of application be as he directs * * *.\" In relation to the control of the work, the contract provided that all work was to be done under the \"supervision and direction of the engineer\" and \"that the contractor shall at all times carry out and fulfill the instructions and directions of the engineer insofar as the work to be performed under the contract is concerned.\" The contractor was required to have a competent superintendent or foreman \"acceptable to the engineer\" on the job and such foreman shall \"receive instructions from the engineer or his authorized representatives.\"\nThe contract between the commission and O'Neil clearly establishes that the commission through its engineer retained the right to control all phases of the project, including everything from clearing and grubbing, sprinkling, traffic control, to the type of equipment and where and when it was to be used, and the details of the method of performance on this particular job.\nIt is true, as defendant argues, that the equipment was owned by O'Neil and rented to the commission, that O'Neil's employment was for a limited period of time, and that O'Neil was paid for his workmen by the commission and he, in turn, paid his employees. These are factors to be taken into consideration in determining the status of O'Neil, but the primary test is the right to control the means and methods of doing the work. We believe that such right in the Highway Commission justifies the conclusion that O'Neil was an employee of the commission.\nThe defendant argues that it did not intend to include O'Neil or a person in his category as being an agent or employee under the terms of its policy with the Highway Commission and that the possibility that O'Neil was covered by the policy came as a surprise. However, as early as August, 1964, one of the adjusters for defendant advised his claims office that he believed the Highway Commission \"retained all control over the actual building of the road, * * *.\" Moreover, the defendant must have known about the right to control provisions in contracts between the commission and persons in O'Neil's category and the legal effect of such provisions on the question of independent contractor or agent or employee of the commission. The insurance policy was drafted by the defendant and if it wished to restrict the policy coverage to exclude one in O'Neil's category it could have done so. See Wooddale, Inc. v. Fidelity and Deposit Co. of Maryland, 378 F.2d 627, 630 (8th Cir.1967).\nFor its second assignment of error, the defendant contends it did not receive timely notice of the accident which occurred on June 19, 1963. The policy issued by defendant to the Highway Commission required written notification to be given \"as soon as practicable.\"\nThe first actual notice of the accident by the Highway Commission was received by a demand letter dated June 19, 1964, from the claimant's attorney. A copy of this letter was sent to the defendant by counsel for the Highway Commission on June 25, 1964. The letter mentioned the date and *419 place of the accident, the name of the claimant, and the fact that the accident occurred while the highway was under construction by the state and O'Neil Construction Company.\nWhile the Highway Commission did not have actual notice of the accident until it received the claim letter of June 19, 1964, the record discloses that the acting job superintendent for the Highway Commission was informed of the accident by the assistant division engineer, and a note by the superintendent was entered of the accident, including names of witnesses, in his daily diary. Generally, knowledge of an accident by an agent or a servant of the insured will be imputed to the insured if the agent or the servant is authorized to receive or to transmit such knowledge. Hoffman v. Employer's Liability Assurance Corp., 146 Or. 66, 29 P.2d 557 (1934); Annot., 18 A.L.R.2d 443, 472; 8 Appleman, Insurance Law and Practice 71, 74, § 4742 (1968).\nAlthough the evidence does not disclose whether the acting superintendent or the assistant division engineer was specifically charged with the duty of reporting the accident, we conclude that the knowledge of these two individuals should be imputed to the Highway Commission. They were not minor employees but were supervisors in charge of the job and the general area for the Highway Commission. The headquarters of the Highway Commission is in Salem, and the only way the commission would have knowledge concerning incidents occurring in the field is by way of information relayed by supervisory personnel. If notice to the job superintendent and the assistant division engineer is not to be considered notice to the Highway Commission, it is doubtful if the insurer could ever insist on reasonable compliance with the notice provisions. See 8 Appleman, supra at 77 note 26.\nAs a general rule, an insured may be excused for a delay in giving notice where it appears that he had no knowledge of the accident and could not have acquired such knowledge by the exercise of reasonable diligence. Hoffman v. Employer's Liability Assurance Corp., supra; Annot., 18 A.L.R.2d 443, 470; 8 Appleman, supra. However, the insured is required to exercise reasonable diligence to acquire information concerning the accident and to so regulate its business that it may be apprised of such incidents with reasonable celerity. Hoffman v. Employer's Liability Assurance Corp., supra 146 Or. at 80, 29 P.2d 557; 8 Appleman, supra at 73. Where the insured fails to give the insurer notice for more than one year after the accident, the burden of proving a reasonable excuse is upon the insured. Hoffman v. Employer's Liability Assurance Corp., supra 146 Or. at 81, 29 P.2d 557. In Hoffman, the court found that the failure to give notice was excusable. In the instant case, there was no showing as to why the commission did not receive the notice possessed by the job superintendent and the assistant division engineer. Oregon Farm Bureau v. Safeco Ins. Co., 249 Or. 449, 453, 438 P.2d 1018 (1968).\nWe conclude that the notice was not given by the commission to the defendant as soon as practicable, as required by defendant's policy.\nFinally, the trial court found, and we agree, that the defendant waived the late notice.\n\"`A failure to give notice or furnish proofs of loss, or defects in the notice of proofs, are waived by a denial of liability on other grounds. This rule is fundamental, and scarcely needs to be supported by the citation of authorities.'\" Eaid v. National Casualty Co., 122 Or. 547, 558, 259 P. 902 (1927), quoting 4, Cooley's Briefs on Insurance at 3531.\nAfter receiving the Highway Commission's notice of the accident and the claim, the defendant's adjuster wrote to the defendant's claim office and, because the accident had occurred a year previously, he mentioned the problem of late notice. The response from the claim office included *420 comments about the elements involved in a late notice.\nWhen plaintiff tendered the defense of O'Neil to the defendant, the defendant rejected the tender on the basis of lack of coverage and made no reference to late notice. Later, after the O'Neil case was tried and plaintiff demanded contribution from defendant, the demand was rejected on the ground that O'Neil was not an agent or employee of the commission. No mention was made of lack of notice. The defense of lack of notice was not raised until after plaintiff's complaint was filed.\nThe defendant knew of the problem of notice in July 1964, at or prior to the time an investigation of the accident was started. It refused both the tender of defense and plaintiff's claim for contribution upon the sole ground of lack of coverage because O'Neil was not an agent or employee of the Highway Commission. In doing so, it waived the defense of lack of notice. Nathan Miller, Inc. v. Northern Ins. Co., 42 Del. 523, 3 Terry 523, 39 A.2d 14, 23 (1944); Eaid v. National Casualty, supra; Annot., 18 A.L.R.2d 443, 491.\nThe defendant contends that waiver of notice does not apply because plaintiff has failed to show that plaintiff or its insured was prejudiced by the waiver.\nThe defendant has confused the terms \"waiver\" and \"estoppel\" in this case. The distinction between the two words in insurance cases was aptly stated by the court in Nathan Miller, Inc. v. Northern Ins. Co., supra, as follows:\n\"* * * A waiver is the intentional relinquishment of a known right, either in terms or by such conduct as clearly indicates an intention to renounce a known privilege or power. It involves both knowledge and intent, and is based on the idea of consent, express or implied. In strictness, waiver is referable to the act or conduct of one party only. It depends on what one party intended to do, rather than upon what he induced his adversary to do, as in estoppel. The doctrine does not necessarily imply that one party to the controversy has been misled to his detriment in reliance on the conduct of the other party; and waiver is not only consistent with, but is generally created upon knowledge of all the facts by both parties. There may, therefore, be a waiver of an existing right apart from any element of estoppel. Waiver implied from circumstances is a question of fact dependent upon the particular facts of the case, and it is usually for the jury to say whether the conduct of the party evidences a conscious and voluntary abandonment of some right or privilege.\" 39 A.2d at 25.\nSee also Grau v. Northwestern Mut. Ins. Co., 221 Or. 240, 350 P.2d 1082 (1960); 16A Appleman, Insurance Law and Practice 279-281, § 9081, and 305, § 9084 (1968).\nThe defendant's final argument is that it cannot be charged with a waiver of notice because such waiver occurred after the time for giving notice had expired.\nIt is true that the courts are not in agreement regarding the effect of a denial of liability by an insurer after the time has elapsed in cases where presentation of proofs of loss must be filed within specified times. In some cases, it has been held that the insurer has not waived a late filing of proofs of loss because of a denial of liability made after the time for filing such proofs. Others hold that a denial of liability made after the time has expired is deemed a waiver. See Annot., 108 A.L.R. 901, 909, 910, and Annot., 49 A.L.R.2d 161, 175, 180.\nNone of the cases cited by defendant is applicable to the instant case because all of the policies in those cases required the proof of loss to be filed within a 60-day period after the loss occurred, and the time had expired when the alleged acts of waiver occurred. In the instant case, the defendant's policy required the written notice to be given as soon as practicable, as compared to a definite, specified period for giving the notice. It cannot be said that the waiver occurred subsequent to the time for giving notice because that time had *421 never been established. Whether or not the giving of notice approximately one year after the accident was timely or, if not timely, excusable, was a matter of judicial determination.\nWe have concluded that the notice was not given to the defendant as soon as practicable, as required by the policy, and that the evidence failed to establish a reasonable excuse for such delay; however, the defendant waived timely notice by denying liability on the grounds of lack of coverage.\nThe judgment is affirmed.\nNOTES\n[*] SLOAN, J., resigned September 30, 1970.\n[**] HOLMAN, J., did not participate in this decision.\n\n", "ocr": false, "opinion_id": 1367876 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0146-3", "author_id": 1750, "opinion_text": " FILED\n UNITED STATES DISTRICT COURT JAN 27 2009\n FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and\n Bankruptcy Courts\n\n Jason Earl Jones, )\n )\n Petitioner, )\n )\n v. )\n )\n Civil Action No. on 0146\n Henry Paulson, )\n )\n Respondent. )\n\n\n MEMORANDUM OPINION\n\n This action, brought pro se by a prisoner at the Kern Valley State Prison in Delano,\n\n California, is before the Court on its initial review of the petition for a writ of mandamus. I\n\n Petitioner seeks to compel the Secretary of the Treasury\n\n to direct the United States Secret Service to respond to Kern Valley State\n Prison and enforce the lien/foreign securities ofthe sovereign state family\n of [petitioner] and further discharge its responsibility to protect\n sovereign/ambassador [petitioner,] demanding the immediate release of\n [petitioner] and his personal property from custody.\n\n Pet. at 2. The extraordinary remedy of a writ of mandamus is available to compel an \"officer or\n\n employee of the United States or any agency thereof to perform a duty owed to plaintiff.\" 28\n\n U.S.C. § 1361. The petitioner bears a heavy burden of showing that his right to a writ of\n\n\n\n\n I The petition is accompanied by petitioner's application to proceed in forma pauperis\n (\"IFP\"), in which he states that he is not incarcerated (Question 1). This is belied, however, by\n the address of record. Because the case will be dismissed on the merits, the Court will not\n prolong matters by compelling petitioner's compliance with the filing fee requirements of the\n Prison Litigation Reform Act, see 28 U.S.C. § 1915, by providing a six-month statement of his\n inmate trust fund account. Petitioner is warned nonetheless that by signing the IFP application\n and affidavit, he has attested to the truthfulness of the information contained therein. His\n untruthful statement is itself a ground for dismissal of the case.\n\n\n\n\n(tJ( 3\n\fmandamus is \"clear and indisputable.\" In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (citation\n\nomitted). Mandamus relief is not appropriate when another adequate remedy is available. LoBue\n\nv. Christopher, 82 F.3d 1081, 1082-84 (D.C. Cir. 1996). Notwithstanding petitioner's alleged\n\ngrandeur, he ultimately seeks his release from custody. His remedy therefore lies in a writ of\n\nhabeas corpus directed at his immediate custodian in California. See Chatman-Bey v.\n\nThornburgh, 864 F.2d 804, 806 (D.C. Cir. 1988) (where \"habeas is an available and potentially\n\nefficacious remedy, it is clear beyond reasonable dispute that mandamus will not appropriately\n\nlie.\"); Rooney v. Secretary of Army, 405 F.3d 1029, 1032 (D.C. Cir. 2005) (habeas 'Jurisdiction\n\nis proper only in the district in which the immediate, not the ultimate, custodian is located\")\n\n(internal citations and quotation marks omitted). A separate Order of dismissal accompanies this\n\nMemorandum Opinion.\n\n\n\n\nDate: December 'I ,2008\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 2668745 } ]

[ "448 F.2d 963" ]

[ { "author_str": "Hamley", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/448/448.F2d.963.71-1018-71-1020.html", "author_id": null, "opinion_text": "448 F.2d 963\n UNITED STATES of America, Appellee,v.Howard JACKSON, Jr., Appellant.UNITED STATES of America, Appellee,v.Billy Joe PAYNE, Appellant.UNITED STATES of America, Appellee,v.Robert H. WILLIS, Appellant.\n Nos. 71-1018-71-1020.\n United States Court of Appeals, Ninth Circuit.\n September 13, 1971.\n \n Tom O'Toole (argued), Tom Karas, Phoenix, Ariz., for Howard Jackson, Jr.\n Michael E. Bradford (argued), Phoenix, Ariz., for Billy Joe Payne.\n Joel Jay Finer (argued), Tucson, Ariz., for Robert H. Willis.\n Charles Diettrich, Asst. U. S. Atty. (argued), Richard Burke, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for appellee.\n Before BARNES, HAMLEY and HUFSTEDLER, Circuit Judges.\n HAMLEY, Circuit Judge:\n \n \n 1\n Howard Jackson, Jr., Billy Joe Payne and Robert H. Willis were jointly tried and convicted of bank robbery with a gun, in violation of 18 U.S.C. § 2113(a)(d). Their individual appeals have been consolidated. We affirm all three judgments.\n \n \n 2\n At 11:45 a. m., on April 28, 1970, three masked Negroes robbed the Valley National Bank, Phoenix, Arizona, of over ten thousand dollars. Employees and customers testified that all three robbers wore stocking masks and at least some of them were armed. The three defendants were arrested and charged with this crime.\n \n \n 3\n All three defendants filed motions to suppress various items of physical evidence. At the pretrial court hearing on these motions there was a confrontation between defendants and five Government eyewitnesses, in the absence of counsel, which provides the basis for defendants' first argument on appeal.\n \n \n 4\n The hearing on the motions to suppress was scheduled to begin at 9:30 a. m. on September 1, 1970. The eyewitnesses came to the courtroom about that time to participate in this hearing and took seats in the spectators' section. The hearing, however, was delayed as the court had asked opposing counsel to first meet in an adjoining room to examine evidence. Counsel for defendant Jackson passed through the courtroom shortly after 9:30 a. m. and saw the Government witnesses sitting in the courtroom. He knew that defendants would be brought to the courtroom for the hearing. However, he did not anticipate that this would occur in the absence of counsel and therefore made no effort to postpone the prospective confrontation until counsel were present.\n \n \n 5\n While opposing counsel were busily engaged in the adjoining room for about an hour, and in accordance with his usual routine, the United States Marshal brought defendants into the courtroom under guard and seated them behind defendants' counsel table. This was done without the knowledge of counsel for either side. While defendants were seated in the courtroom prior to the commencement of the hearing the eyewitnesses took occasion to observe them.\n \n \n 6\n Most of the witnesses later testified that they assumed the three persons who had been brought in by the marshal were the persons who had been indicted for the offense. Two of the witnesses indicated that they, and the other witnesses, left the courtroom during this period, looked back at the defendants through the window in the courtroom door, and that there was some conversation between them as to the identity of the three individuals who had been seated at the counsel table.\n \n \n 7\n When counsel returned to the courtroom about 10:40 a. m., and the suppression hearing commenced, the court excluded the witnesses from the courtroom except when they were called individually to testify, and admonished them not to discuss the case with each other. Only thereafter did counsel for Jackson and Willis call the court's attention to the confrontation which had occurred, and no objection or motion pertaining to the incident was made at that time.\n \n \n 8\n The five eyewitnesses were called to the witness stand during the suppression hearing which continued into September 2, 1970. At this time the three defendants were apparently scattered about the courtroom. Among other questions, each witness was asked in turn whether he saw in the courtroom any of the robbers. Witnesses Wiggins and Palmer identified defendants Payne and Jackson. Witness Esmeier identified defendant Willis. Witness Moulton identified Payne and witness Welch identified Payne and Willis. All five testified that their identifications were based upon their observations at the time of the robbery, and they were not assisted by the confrontation which had occurred on the previous day.1\n \n \n 9\n Counsel for defendants voiced no objection to these courtroom identifications during the suppression hearing. When witness Esmeier asked if he could stand up while he looked at persons in the courtroom, the court asked all of the defendants to stand. They did so. None of the defense counsel objected to this procedure. At least in the absence of objection, this practice does not deprive a defendant of due process. United States v. Zammiello, 432 F.2d 72, 73 (9th Cir. 1970).\n \n \n 10\n While the suppression hearing was in recess defendants formally moved to suppress the in-court identification of defendants by the five Government eyewitnesses. Counsels' ground for this motion was that the confrontation on September 1, 1970, tainted the witnesses' ability to make reliable in-court identification and thereby deprived defendants of due process. The motion was denied. At the trial the five eyewitnesses repeated their in-court identifications of defendants. While witness Welch was making her identification the court again, without objection, had all of the defendants stand. During the trial defendants several times renewed their motions to suppress the in-court identifications, but the motions were denied.\n \n \n 11\n All of the defendants here contend that the in-court identifications described above deprived them of due process of law.\n \n \n 12\n Defendants are entitled to reversal if the confrontation on September 1, 1970, \"was so unnecessarily suggestive and conducive to irreparable mistaken identification\" as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967); Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L. Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 3-6, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970). See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed. 2d 1267 (1968). As observed in Stovall, 388 U.S. at 302, 87 S.Ct. 1967, such a claimed violation of due process of law depends upon the totality of the circumstances surrounding the confrontation at issue. Stovall further indicates that the relevant considerations are not limited to those bearing upon the suggestive character of the confrontation itself, but include those pertaining to the reasons why the confrontation occurred. In addition, Foster, supra, 394 U.S. at 443, 89 S.Ct. 1127, indicates that the spontaneity of the witness' identification at the confrontation is to be considered; while Coleman, supra, 399 U.S. at 5-6, 90 S.Ct. 1999, teaches us that we are also to weigh the question of whether it was the confrontation, or an independent source,2 which formed the basis of the witness' later in-court identification. Finally, both Foster, 394 U.S. at 443, 89 S.Ct. 1127, and Coleman, 399 U.S. at 6, 90 S.Ct. 1999, treat as relevant the expressions of law enforcement officials to the witness concerning the identity of the individual exhibited.\n \n \n 13\n An examination of the facts in the case at bar, in light of the factors relied upon in the above Supreme Court opinions, convinces us that, considering the totality of the circumstances, defendants were not deprived of due process under the Fifth Amendment by the September 1, 1970, confrontation. The circumstances which persuade us are: (1) the confrontation was not planned by prosecuting or enforcement officials, but was inadvertent; (2) no officials indicated to the witnesses that the men led into the courtroom were the defendants in the bank robbery case, or even connected with the case in any way; (3) the assumption made by some of the witnesses that these were in fact the defendants appears to have stemmed as much from the witnesses' spontaneous recognition of the men based upon their observations at the time of the robbery, as from the fact that the men were seated at the counsel table; (4) all of the eyewitnesses who participated in the confrontation and later testified at the suppression hearing and the trial, testified that the confrontation did not assist them in making their in-court identifications; (5) there was substantial evidence, other than from these eyewitnesses, connecting the three defendants with the robbery; and (6) the inadvertent confrontation prior to the suppression hearing was less suggestive than the \"stand up\" procedure followed, in the presence of counsel and without objection, at the suppression hearing and the subsequent trial.\n \n \n 14\n In reaching the conclusion that the defendants were not deprived of due process in this case, we do not intend to intimate that we will, in other and more aggravated circumstances, condone the use by prosecuting attorneys of pretestimony courtroom confrontations to \"firm up\" the uncertain memories of potential witnesses. In this respect we agree with the District of Columbia Circuit that, where a normal jailhouse lineup could have been arranged, the use of a non-lineup confrontation \"* * * is, at the least, a practice fraught with perils to a degree suggesting its sparing use as the part of prudence.\" Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240-1241 (1968). Rather, we decide here only that the circumstances of the present case are not so \"impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,\" Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L.Ed.2d 1247 (1968), quoted in Coleman v. Alabama, supra, 399 U.S. at 5, 90 S.Ct. 1999.3\n \n \n 15\n With reference to the confrontation incident, defendant Willis invokes not only the Due Process Clause of the Fifth Amendment, but the Assistance of Counsel Clause of the Sixth Amendment. In support of this argument, Willis places primary reliance upon the lineup cases, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967).\n \n \n 16\n In our view, however, the teaching of those cases does not apply to an inadvertent pretrial courtroom confrontation of the kind which took place in this case. See United States v. Ballard, 418 F.2d 325, 327 (9th Cir. 1969). Defendants were not brought into the courtroom in an effort to assist the eyewitnesses in identifying them as the robbers. Moreover, there is nothing to indicate that if defendants' counsel had then been present they would have done any more to alleviate the supposed prejudice than they did at the subsequent suppression hearing and trial, as described above. We conclude that this incident did not deprive defendants of the assistance of counsel.\n \n \n 17\n On the afternoon of the day of the robbery, April 28, 1970, officers found items in a trash can outside Rooms 19 and 20 of Hall's Motel, Phoenix, Arizona, which were received in evidence as Government's exhibits 5, 7 and 8. They also found an item in a trash can in Room 20 of the motel, which was received in evidence as Government's exhibit 6. The district court denied defendants' motions to suppress this evidence as the product of an unlawful search and seizure. Defendants here urge that the trial court erred in admitting these items into evidence.\n \n \n 18\n Defendants advance two reasons why this search and seizure was unlawful. The first is that the seizure of the articles at the motel was the fruit of an illegal seizure and interrogation of defendants which had occurred four days prior to the bank robbery.\n \n \n 19\n On April 24, 1970, officers Montgomery and Gibson of the Phoenix Police Department were on duty working the 7:00 p. m. to 3:00 a. m. shift. They were in plain clothes and were in an unmarked patrol car. At approximately 11:20 p. m. they received a radio report that a liquor store had been robbed at Sixteenth Street and Osborn, Phoenix. According to this report, the robbery had been committed by two Negro males wearing nylon stocking masks, who had departed in an easterly direction behind the store.\n \n \n 20\n The officers were experienced and were familiar with the area. They proceeded immediately to a location at Twentieth Street and Roosevelt. They did this because they felt that Twentieth Street would be a possible escape route. Twentieth Street and Roosevelt is a primarily Mexican neighborhood and from the Roosevelt intersection Twentieth Street heads directly to a primarily Negro neighborhood in the Van Buren area. Between Twentieth Street and Roosevelt and Sixteenth Street and Osborn, the scene of the robbery, there were four major intersections with stoplights, as well as numerous cross streets.\n \n \n 21\n About one minute after reaching Twentieth Street and Roosevelt, the officers saw a 1959 white Cadillac fourdoor automobile with a New Mexico license plate, southbound on Twentieth Street, with three Negro males inside. The officers trailed the Cadillac to Van Buren, and brought it to a stop in the 1900 block of East Van Buren, by flashing a red light.\n \n \n 22\n The officers stopped the car because they felt the three persons inside were possible suspects in the liquor store robbery. It was the intention of the officers to detain the three suspects temporarily for purposes of \"field interrogation.\" This meant the obtaining of information involving names, addresses, occupations and the reason for being in Phoenix. Upon stopping the Cadillac, one officer approached on the driver's side and the other on the passenger side. The three persons in the Cadillac turned out to be Willis, Payne and Jackson, with Willis as driver. The officers identified themselves and requested the information above indicated. No Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) warning was given, and the car was not searched.\n \n \n 23\n Willis and Payne produced identification. Jackson, however, did not have any. The entire sequence of events lasted from twenty to thirty minutes. The information obtained from the documents presented by Payne and Willis and orally from Jackson was recorded by one of the officers on a form field interrogation card, and the three occupants of the Cadillac departed in their car.4\n \n \n 24\n After the bank robbery occurred on April 28, 1970, the police officers recalled the similarity in description between the report that the three Negro bandits drove a white Cadillac getaway car after the bank robbery, and the description of three Negro males driving a 1959 white Cadillac on April 24, 1970. On the basis of this recollection, the police officers proceeded to the Hall's Motel address which was recorded on the field interrogation card and made the search and seizure under discussion.\n \n \n 25\n In urging that the stopping and questioning on April 24th under the described circumstances was unlawful under the Fourth Amendment, defendants rely primarily upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). They argue that the officers were acting only on a \"hunch\"; point out that, whereas the liquor store robbery was committed by two Negroes, there were three in the Cadillac on April 24; and note that there were numerous alternative \"get-away\" routes from the liquor store robbery.\n \n \n 26\n Terry involved the stop and frisk of a person on a public sidewalk, not in an effort to apprehend one who had just committed a particular crime, but because of what the officer regarded as generally suspicious conduct. Incriminating evidence was found, consisting of a concealed weapon, and the seizure of that evidence was challenged in the prosecution for carrying the concealed weapon. The Supreme Court affirmed the conviction.\n \n \n 27\n While the facts of Terry vary substantially from those of the case before us, the rationale of that decision is equally applicable here. Terry notes that there can be a \"seizure\" of a person in the Fourth Amendment sense, even where there is no formal arrest. The legality of such a seizure depends not upon whether there was probable cause to make an arrest, but upon whether there was a violation of the general proscription against unreasonable searches and seizures. Terry, at 20, 88 S.Ct. 1868.\n \n \n 28\n In determining whether such a seizure is \"unreasonable,\" the judicial inquiry \"* * * is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.\" Terry, at 19-20, 88 S.Ct. at 1879.\n \n \n 29\n The Terry Court also called attention to the observation in Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), that there is \"no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.\" In Terry the Court also announced this general test:\n \n \n 30\n \"* * * in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion.\" Terry, 392 U.S. at 21, 88 S.Ct. at 1880.\n \n \n 31\n Applying these considerations to the circumstances concerning the April 24, 1970 stopping and interrogation of defendants, we conclude that the action of the police officers on that occasion was reasonable and hence not violative of the Fourth Amendment.5\n \n \n 32\n Summarizing our reasons for reaching this conclusion:\n \n \n 33\n First, the intrusion upon the personal liberty of Willis, Payne and Jackson on April 24, 1970, was relatively innocuous. They were not frisked. Their Cadillac was not searched. No incriminating evidence was seized. There was no rough treatment or unnecessary public indignity. While the interrogation period was somewhat protracted, this is explainable because Jackson carried no identification.\n \n \n 34\n Second, the police officers were faced with an emergency. They had been advised that a liquor store had just been robbed. They rationally inferred that the robbers would attempt to get away by automobile. It was their duty to try to detect and apprehend the robbers if they came within the officers' area of responsibility.\n \n \n 35\n Third, the officers had been told that the robbers were two Negroes and it was rational for them to infer that there might be a third person involved as a \"look-out\" or driver. The officers were also experienced in such matters and rationally inferred that the Negro robbers might seek a haven in the Negro area of Phoenix which could lead them to drive out Twentieth Street.\n \n \n 36\n Fourth, the Cadillac with its three Negroes approached along Twentieth Street, headed in the direction of the Negro area of the city. The circumstances called for swift action.\n \n \n 37\n Under these facts the officers acted reasonably in stopping the Cadillac and questioning the occupants concerning their identity and residences. This was intelligent, effective police work. If police officers may not do what was done here, law enforcement would be seriously crippled. The Fourth Amendment was not intended to handcuff the police in their reasonable effort to handcuff criminals. See also, Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966).\n \n \n 38\n No Miranda warning was necessary before the officers questioned defendants on April 24, 1970, as to their identity and places of residence. Disclosure of name and address is an essentially neutral act. It identifies but does not by itself implicate anyone in criminal conduct. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 1540, 1541, 29 L.Ed.2d 9 (1971).\n \n \n 39\n But if we are mistaken in deciding that the stopping and interrogating on April 24, 1970, was not unlawful, we in any event conclude that the connection between that conduct and the discovery of the challenged evidence \"became so attenuated as to dissipate the taint.\" See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), quoted in Wong Sun v. United States, 371 U.S. 471, 487, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963).\n \n \n 40\n The interrogation took place four days prior to the crime with which we are concerned. No information was gained during the interrogation which provided substantive evidence in the bank robbery prosecution or which, as in Wong Sun, purported to reveal where incriminating evidence could be found. The information gained — names, addresses descriptions — would have been wholly innocuous were it not for the subsequent eyewitness accounts of the bank robbery. The information gained on April 24, made it possible for the officers to make a prompt investigation at Hall's Motel. But it would be speculative to conclude that, but for such information, the police would not have identified defendants or learned their place of residence.\n \n \n 41\n We accordingly hold that the seizure of evidence made at Hall's Motel on April 28, 1970, was not tainted by the stopping and interrogation which occurred four days earlier.\n \n \n 42\n Defendants, however, also argue that the search and seizure at Hall's Motel was illegal because the officers did not have a search warrant.\n \n \n 43\n As before stated, one item was found in Room 20. Mrs. Lambert, owner and operator of the motel, believed Room 20 had been vacated and, on that premise, gave the officers permission to search that room. We have reviewed the circumstances which led Mrs. Lambert to conclude that the room had been vacated and believe that they were ample to support her view. Defendant Jackson testified that the room had been vacated. When the officers entered the room there was nothing to put them on notice that the room was still occupied. The only item seized in that room was found in a trash can. Under the evidence we conclude that the room was then vacant. Defendants thus may not complain of the search of that room and the seizure of an item from a trash can therein. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Kress, 446 F.2d 358 (9th Cir. 1971).\n \n \n 44\n The other items seized at the motel and later received in evidence were taken from a trash can outside Rooms 19 and 20. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When defendants placed articles in this public trash can outside the room, they surrendered their privacy with regard to those articles. See United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962). See also, Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968).\n \n \n 45\n After being arrested at the motel on April 28, 1970, for failure to register as an ex-felon, defendant Jackson was transported to the Phoenix Police Department. An officer then removed several strands of hair from Jackson's head for the purpose of expert comparison with hair samples found in the stocking remnants seized at the motel and in a stocking mask found in the alley adjacent to the bank. Jackson moved to suppress any evidence concerning the hair samples on the ground that they were taken at a time when Jackson had requested, but did not have, the assistance of counsel, and that they were taken without prior authorization of the court, and in the absence of exigent circumstances.6\n \n \n 46\n According to Jackson's testimony, the hair was not taken in a cruel or oppressive manner or under circumstances or by means that would shock the conscience of the court. Removal of hair samples has been held not to violate due process of law. See Grimes v. United States, 405 F.2d 477, 479 (5th Cir. 1968). Nor, although accomplished in the absence of counsel, do we believe it denies an arrested person's Sixth Amendment right to the assistance of counsel. It is no more a critical stage of the prosecution than is fingerprinting.\n \n \n 47\n Defendant Jackson contends that the trial court erred in refusing to give his requested accessory-after-the-fact instruction. Jackson argues that the evidence would have supported a jury finding that Jackson knew the bank robbery had been committed and that he wilfully assisted the offenders in order to hinder their apprehension. But, Jackson urges, the jury, if properly instructed, could have found that he did not engage in the robbery.\n \n \n 48\n Jackson was not charged with a violation of 18 U.S.C. § 3, accessory after the fact, which is a separate and distinct crime from bank robbery with a gun, with which he was charged. See Orlando v. United States, 377 F.2d 667, 670 (9th Cir. 1967), later vacated on other grounds, 387 F.2d 348 (9th Cir. 1967). There was substantive evidence connecting Jackson with the actual robbery. The requested instruction was properly rejected.\n \n \n 49\n Defendant Willis contends that the failure of the Government to transcribe the grand jury proceedings was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him.\n \n \n 50\n It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment.\n \n \n 51\n This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory. See United States v. Ybarra, 430 F.2d 1230, 1233 (9th Cir. 1970); United States v. Thoresen, 428 F.2d 654, 666 (9th Cir. 1970); Jack v. United States, 409 F.2d 522, 524 (9th Cir. 1969); and Loux v. United States, 389 F.2d 911, 916 (9th Cir. 1968). We decline to re-examine these decisions.\n \n \n 52\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n All of those witnesses had previously inspected groups of photographs in an effort to identify the robbers, but with little success. Defendants raise no question here concerning the validity of the photo-identification procedures. There had been no lineup, although the three defendants had all been available for at least a month\n \n \n 2\n See also, United States v. Wade, 388 U.S. 218, 241-243, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 269-274, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967).\n \n \n 3\n It should be noted that in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) the Supreme Court gave no indication as to whether or not the confrontation which there occurred had been impermissibly suggestive; instead, the Court based its decision on thenecessity for the confrontation. In fact, of the Supreme Court cases which have considered this confrontation issue, only Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) has reversed a conviction because of the impermissible suggestiveness of the confrontation; and the facts of the present case fall far short of the aggravated circumstances in Foster, which included two lineups, one of which unmistakably highlighted the defendant, as well as a one-to-one confrontation. See Coleman v. Alabama, 399 U.S. 1, 3-6, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed. 2d 1267 (1968).\n Moreover, if the striking similarity of the case at bar to United States v. Ballard, 418 F.2d 325, 327 (9th Cir. 1969) does not compel our decision here, it lends clear support, at the very least, to the conclusion we have reached.\n \n \n 4\n We are not certain from the record before us whether the field interrogation card was received in evidence. But in any event, that card contains nothing tending to link defendants with the bank robbery on April 28, 1970\n \n \n 5\n In so concluding, we assume that the stopping of defendants on that occasion was a \"seizure\" of them in theTerry sense, notwithstanding the testimony of the officers that defendants were at all times free to go on their way.\n \n \n 6\n Jackson also argued that the hair samples were the tainted fruit of the April 24, 1970 highway interrogation — a matter we have already sufficiently discussed\n \n \n ", "ocr": false, "opinion_id": 299194 } ]

[ "385 N.E.2d 942", "68 Ill. App. 3d 50" ]

[ { "author_str": "Rechenmacher", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7243, "opinion_text": "\n68 Ill. App. 3d 50 (1979)\n385 N.E.2d 942\nCUSTOM BUSINESS SYSTEMS, INC., Plaintiff-Appellant,\nv.\nBOISE CASCADE CORPORATION, Defendant-Appellee.\nNo. 77-610.\nIllinois Appellate Court — Second District.\nOpinion filed January 23, 1979.\n*51 William Ferguson, Timothy E. Cronin, and Keith E. Roberts, all of Donovan & Roberts, of Wheaton, for appellant.\nJ. William Hayton, of Bell, Boyd, Lloyd, Haddad & Burns, of Chicago, for appellee.\nJudgment affirmed.\nMr. JUSTICE RECHENMACHER delivered the opinion of the court:\nThe plaintiff appeals from the trial court's order dismissing its complaint in an action for damages and injunctive relief arising out of alleged unfair competition and deceptive trade practices.\n• 1 The amended complaint is in two counts — count I being for money damages based apparently on the common law tort of unfair competition and count II for damages and injunctive relief based on the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 311 et seq.). This Act is generally considered to have codified the common law tort of unfair competition. (Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App. 3d 338.) The specific complaint of the plaintiff here is that the defendant caused a likelihood of confusion or misunderstanding as to the source of goods, citing section 2(2) of the Uniform Deceptive Trade Practices Act, which reads as follows:\n\"A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:\n* * *\n(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship approval or certification of goods or services; * * *.\"\nThe following circumstances are alleged to have constituted the defendant's deceptive trade practice. The plaintiff is an envelope manufacturer and the defendant is also developing a business in that field. The defendant gets out a house magazine called the Boise Cascade Quarterly and in the May 1976 issue of this magazine there was an article about color-coded envelopes discussing their development and use in connection with medical records. The article was accompanied by a *52 photograph which showed a hospital technician inspecting an envelope. Under the photo was the caption \"A technician in a Chicago hospital holds a color-coded envelope designed by Boise Cascade.\" Actually, the envelope depicted in the photo had been designed and sold by the plaintiff, not by Boise Cascade. The plaintiff claims this was deliberate and deceptive and amounted to unfair competition as to the source of its product and was therefore a violation of that section of the Uniform Deceptive Trade Practices Act set forth above.\nThe plaintiff filed its complaint in August 1976 and an amended complaint in November 1976. The defendant filed a motion to dismiss the amended complaint and the plaintiff then amended its complaint and filed a second amended complaint in which it asked not only for damages and an injunction to restrain the defendant from \"further distributing any false claims or photographs relating to plaintiff's color-coded envelopes' system and from claiming same as its own,\" but also praying that the defendant be requested to publish a retraction admitting the falsity of its photo and the caption.\nThe defendant in its February 1977 issue of Boise Cascade Quarterly did publish a statement admitting the caption of its photo in the May 1976 issue was in error and stating the envelopes shown were not manufactured by Boise Cascade and expressing regret for the error. It also filed its motion to dismiss the second amended complaint for failure to state a claim upon which relief could be granted.\nAfter considering the briefs of counsel opposing and supporting such motion, the court dismissed the complaint \"with prejudice and without leave to amend.\" It is from that order that the plaintiff appeals. The plaintiff's brief suggests in its form a distinction between the common law tort of unfair competition and a course of action based on the Uniform Deceptive Trade Practices Act, and we are not inclined to dispute that there may be a cause of action under certain aspects of the common law which are not covered by the Uniform Deceptive Trade Practices Act. However, the plaintiff does not set out in its brief a distinct theory under the common law which would entitle it to judgment separate and apart from issues cognizable under the Uniform Deceptive Trade Practices Act, and as the plaintiff admits in its brief, while over the years \"the courts of Illinois and other states have consistently expanded and developed the scope of this tort * * * the case law which has come out of this development has not spelled out in well defined terms the elements necessary to state a cause of action for unfair competition.\"\nIt was no doubt for this reason that the legislature enacted the Uniform Deceptive Trade Practices Act which, as the plaintiff acknowledges in its brief, \"was quickly recognized by the courts of Illinois as being a codification of the common law tort of unfair *53 competition.\" Since the plaintiff's brief does not point out any aspect of this case which constitutes a separate common law tort, in addition to the allegations of violation of the Uniform Deceptive Trade Practices Act, we are not inclined to search out the ramifications of a common law action, which might establish grounds for relief in addition to the elements of unfair competition recognized under the Act. We are inclined, therefore, as did the trial court, to consider the sufficiency of the complaint on the basis of the Uniform Deceptive Trade Practices Act.\nUnder the Act it appears to us that only section 2(2) can be logically claimed to apply to the facts of this case, that is, that the conduct of the defendant \"causes likelihood of confusion or of misunderstanding as to the source, sponsorship approval or certification of goods or services.\" Section 3 of the Act, of course, provides for injunctive relief:\n\"A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it in accordance with the principles of equity and upon terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive is not required.\" (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 313.)\nAs to an injunction, however, this seems unnecessary since the defendant has already published an acknowledgment of its error and expressed regret for it. The nature of the publication in which the article appeared — a trade journal issued only quarterly — does not suggest a commercial motive or even a deliberate act and from the nature of the incident there is no reason to suppose that there is a threat of future misrepresentation of this sort which should be enjoined. The defendant, having admitted its error, would hardly be in a position to continue a course designed to exploit the original erroneous caption and we see no error in rejecting the prayer for injunction against repeating what the defendant admits was a mistake on its part.\n• 2, 3 We limit our consideration of the complaint to the issue raised by the photo, since it appears to us that only the allegation with regard to the effect of the misleading caption in the photo is both substantial and relevant to the question of unfair competition. That issue is as indicated above, the \"likelihood of confusion or of misunderstanding as to the source, sponsorship approval or certification of goods or services.\" See Clairol, Inc. v. Andrea Dumon, Inc. (1973), 14 Ill. App. 3d 641, 648, where the court said:\n\"It is clear from the legislative notes accompanying section 312(2) that the legislature intended, by the use of its phrase `likelihood of confusion or misunderstanding,' to codify Illinois' common law tradition.\"\nSuch a likelihood is a source of legitimate concern to a competitor but it is *54 not enough to allege that such likelihood arises out of the situation described. As the trial court remarked in its memorandum opinion, such confusion or misunderstanding must be more than a mere possibility — possibilities of mistake or confusion are limitless amidst the complexities of the modern business world and unless the act or conduct in question establishes a likelihood of mistake or confusion disadvantageous to the plaintiff the possibility is too remote to be meaningful. Of course, in order to establish a likelihood rather than a mere possibility — that is, to establish that it is more probable than not that harm did or will result to the plaintiff — there must be more than the mere allegation that confusion occurred, to the injury of the plaintiff. As pointed out by the defendant in its motion to dismiss, the plaintiff did not allege and had no basis to claim that the design of the color-coded envelopes shown in the photo was unique and that potential customers recognized the unique design from the photo and were misled into buying from Cascade. It is not alleged that the particular design of the envelope shown in the photo had acquired a secondary meaning which inevitably associated it with the plaintiff. It appears to us that if a potential customer merely wanted color-coded envelopes he might have been induced by the photo to purchase them from Boise Cascade instead of from the plaintiff, but if, on the other hand, he wanted only a certain specifically designed color-coded envelope and only the plaintiff produced such envelope, the photo caption could not have injured the plaintiff and lost it business.\nNaturally the plaintiff, if it had a head start in the color-coded market, wished to preserve its advantage and had a proper concern when another attempted to ride on its back, as it were. However, we cannot believe that the impact of the photo caption in question, appearing in a trade journal, was seriously damaging to the plaintiff's position. We must agree with the trial court that on the basis of the complaint and the opposing motions to dismiss, there are neither substantial factual allegations nor persuasive authority to sustain a cause of action under the Uniform Deceptive Trade Practices Act. The bare bones of the situation as set forth in the allegations of the complaint are not enough to constitute a cause of action, unless we accept certain speculations arising from the allegations as necessary results — which we are not inclined to do. A mere possibility that some confusion may arise from the misleading caption under the photo in question is too nebulous a basis for a cause of action. A substantial likelihood of confusion, damaging to the plaintiff, is not established by the actual facts alleged, without any claim or evidence of uniqueness or secondary meaning resulting from the design of the plaintiff's product. (See Filter Dynamics International, Inc. v. Astron Battery, Inc. (1974), 19 Ill. App. 3d 299.) We think the trial court did not *55 err in the ruling that the well-pleaded facts of the complaint did not state a claim upon which relief could be granted.\n• 4 The plaintiff complains, however, that the court not only erred in dismissing the second amended complaint for failure to state a cause of action but compounded the error by doing so without leave to amend. The plaintiff contends, quite correctly, that under the Practice Act pleadings are to be liberally construed, and where a fault in pleading can be cured by amendment, an opportunity to do so should not be denied. It is true that the general rule with respect to pleadings is that a cause of action should not be dismissed unless it clearly appears that no set of facts can be proved which would justify recovery. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298; J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404.) Moreover, we agree with the plaintiff that the general rule enunciated above implies considerable liberality in allowing amendments to pleadings which have been found insufficient. It should be pointed out, however, that the plaintiff was not denied that opportunity in the case before us. The case was dismissed on the basis of the third complaint filed — this being the second amended complaint, following the filing of the original complaint and the amended complaint. Before granting the motion to dismiss the second amended complaint, the trial court called for briefs from both counsel in opposition and in support of the motion, and a further reply brief was filed by plaintiff's counsel. After the submission of the reply brief on June 23, 1977, the trial court took the motion under advisement and did not announce its decision until 60 days later, on August 24, 1977. Thus it is clear that the trial court did not act hastily or arbitrarily on the motion.\nMoreover, after the trial court had indicated in a letter to both counsel the basis of its ruling and had signed the order dismissing the complaint, the plaintiff sought and was granted a hearing on a motion for leave to file a third amended complaint. In the colloquy between the court and plaintiff's counsel, the court made it clear that it had ruled as it did because it did not feel the complaint was further amendable so as to state a cause of action within the framework of the essential facts already pleaded in the previous complaint. However, the court gave plaintiff's counsel a last opportunity to present a third amended complaint, if such complaint sufficiently stated a cause of action. A portion of the colloquy at that hearing follows:\n\"[THE COURT]: I don't want to foreclosure you from a motion for leave to file a third amended complaint if you could state to the Court that you would be reciting facts anew which would be so different from the facts that were alleged in the second amended complaint which would take it out of the context of the motion to *56 dismiss on which the Court received briefs, memoranda and made its ruling.\nDo you understand what I'm talking about?\nMR. CRONIN [attorney for plaintiff]: We are pretty much locked into those facts, Judge.\nTHE COURT: All right. Then that will be the ruling of the Court. I just didn't want to summarily shut you off. If you can state to the Court you have new facts or other facts or a different theory or something which would be contrary to what the Court's ruling was on the motion to dismiss I'd grant you leave. But if you are unable to say that then I think it should be dismissed.\nMR. CRONIN: We would be alleging basically the same facts.\nTHE COURT: All right.\"\nThe above colloquy clearly indicates that the plaintiff was given a chance to amend again if it could realistically present a theory or set of facts different from what had already been ruled upon as insufficient. The plaintiff had no way of doing this — it was \"locked into\" the facts already adduced as the basis of its complaint. Thus, a third amended complaint would have been a futile gesture and under such circumstances the plaintiff's objection to the ruling of dismissal without leave to amend has no substance.\nThe motion to file additional transcript which was ordered taken with the case is allowed.\nThe judgment of the circuit court of Du Page County is affirmed.\nJudgment affirmed.\nSEIDENFELD and WOODWARD, JJ., concur.\n", "ocr": false, "opinion_id": 2061670 } ]

[ "216 Cal. App. 2d 495" ]

[ { "author_str": "Conley", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n216 Cal. App. 2d 495 (1963)\nJ. C. WATTENBARGER & SONS, Plaintiff and Appellant,\nv.\nROY L. SANDERS, Defendant and Respondent.\nCiv. No. 223. \nCalifornia Court of Appeals. Fifth Dist. \nMay 21, 1963.\n Vizzard, Baker, Sullivan & McFarland and Jere N. Sullivan for Plaintiff and Appellant.\n Deadrich & Bates and Kenneth H. Bates for Defendant and Respondent.\n CONLEY, P. J.\n J. C. Wattenbarger & Sons is a corporation engaged in the sale of building materials and supplies. It sued the defendants, Lester W. Sanders, Anna L. Sanders, Charles W. Hauser, Sherlene Hauser and the respondent herein, Roy L. Sanders, individually and doing business as C & L Construction Co., Ltd., a copartnership. All of the defendants except respondent Roy L. Sanders defaulted, and a judgment was granted plaintiff against them in the sum of $6,532.24 principal, $3,070.40 interest, and $500 attorneys' fees, besides costs of suit. The judgment, however, was in favor of Roy L. Sanders, a limited partner, and the plaintiff appealed.\n The merits of the appeal depend on whether Roy L. Sanders was responsible to the plaintiff on its account against the partnership for supplies and materials as an alleged general, or as an admittedly limited, partner.\n This case previously came before the Fourth District Court of Appeal after the trial court had granted a summary judgment in favor of Roy L. Sanders (J. C. Wattenbarger & Sons v. Sanders, 191 Cal. App. 2d 857 [13 Cal. Rptr. 92]); that judgment was reversed because there were issues of fact which required a trial on the merits. *499\n After the reversal, the case was tried as a contested matter by the court sitting without a jury. Points urged on appeal by the plaintiff are as follows: (1) It is claimed that Roy L. Sanders is liable to the appellant because he allegedly held himself out to the world as a general partner through the publication of a notice that the partnership was transacting business under a fictitious name; (2) even if it be considered that he was, as he claims, only a limited partner, it is argued that he is liable to the plaintiff on the ground that his status as a limited partner as described in the certificate of limited partnership requires that he pay the appellant as a creditor of the partnership or as a third party beneficiary; (3) it is claimed that the findings are insufficient in various particulars; and (4) it is argued that the attorneys' fees of $500 granted by the court pursuant to a contract by which the partnership agreed to pay reasonable attorneys' fees in the event of an action are inadequate.\n [1] This last contention may be summarily dealt with. The appellant did not appeal from that portion of the judgment which awarded attorneys' fees in its favor against all of the defendants except Roy L. Sanders. Obviously, there is no right to complain of a portion of the judgment not appealed from. [2] It may be noted in passing that a trial court has a wide discretion in determining the amount of attorneys' fees to be awarded and even if the appeal had been broad enough to make this point available to appellant this court would not have interfered with the action of the court below. (Independent Iron Works, Inc. v. County of Tulare, 207 Cal. App. 2d 164, 167 [24 Cal. Rptr. 361]; City of Los Angeles v. Los Angeles-Inyo Farms Co., 134 Cal. App. 268, 274 [25 P.2d 224].) The trial court's award of $500 on a default judgment taken against four defendants, two of whom had gone through bankruptcy, was within the proper orbit of the trial court's discretion.\n [3] Considering the first of the grounds above specified, it is appellant's contention that by the mere execution, publication and filing of the fictitious name certificate, reading as follows, the appellant became liable as a general partner:\n \"The undersigned do hereby certify that they are conducting a real estate development business at 400 Hazel Street in the City of Bakersfield, County of Kern, State of California, under the fictitious trade name of C & L Construction Co., Ltd. and that said firm is composed of the following persons, whose names and addresses is [sic] as follows, to-wit: *500\"\n Tabular Material Omitted\n Appellant argues that by this certificate, respondent informed the world that he was one of the persons conducting a real estate development business at the above address and that as he did not therein declare that he was a limited partner or that the basis of his participation in the business differed from that of the other partners, everyone, including plaintiff, had a right to treat him thereafter as a general partner.\n While it has been said that the underlying reason for requiring the publication and filing of a certificate of this kind is to give to the general public information as to the membership behind a fictitious partnership name so that the public will know the individuals with whom they are dealing and to whom they are giving credit or becoming bound (Andrew v. Glick, 205 Cal. 699, 701 [272 P. 587]; Levelon Builders, Inc. v. Lynn, 194 Cal. App. 2d 657, 662 [15 Cal. Rptr. 582]; Hunter v. Croysdill, 169 Cal. App. 2d 307 [337 P.2d 174]; Hixson v. Boren, 144 Cal. App. 2d 547, 553 [301 P.2d 615]), it is not stated in the code section itself or in any cogent authority that anyone whose name appears without qualification in such a certificate will ipso facto be held as a general partner; the only penalty inflicted as a consequence of a failure to conform with the code section is that upon proper objection no fictitiously named partnership which has failed to comply with the statutory requirements will be permitted to carry on a lawsuit. (Civ. Code, 2468.) [4] Conformity with the code section is not jurisdictional, for partners who are acting under a fictitious name when no such publication has been made may enter into contracts and carry on business, and a defendant in a suit brought in the name of the fictitious partnership waives the objection to proceeding with the action if he does not specifically raise it. (3 Witkin, Summary of California Law, Partnership, 4, pp. 2265-2266.)\n [5] The question to be answered when it is contended that a defendant is an ostensible partner is whether the acts and conduct of an individual were factually and legally sufficient *501 to lead another person to believe he was a copartner and assumed responsibility as such. This is an issue for the trial court to determine from all of the evidence in the case. (Calada Materials Co. v. Collins, 184 Cal. App. 2d 250, 253 [7 Cal. Rptr. 374].)\n [6] Reliance upon an actual or apparent representation of partnership is an essential element to be proven and respondent points out that the record shows that the certificate of fictitious name did not come to the attention of any of appellant's officers until the middle or latter part of July, at a time when the transactions which are the subject of the action were almost completed.\n One may reasonably assume that the credit investigating arm of a modern business establishment would make rather extensive inquiries as to the participation and financial standing of those involved in a partnership business. [7] Roy L. Sanders and the general partners executed an amended certificate of limited partnership, filed it with the county clerk on May 21, 1958, and recorded it on May 26, 1958, before the filing and publication of the fictitious partnership certificate; this furnished available notice that he was in fact a limited partner. Respondent correctly urges that there was ample evidence to justify the court's finding that respondent was never held out as a general partner, and that the execution of the certificate of fictitious name could not serve as a matter of law to change respondent's status. There is no intimation in the record that Roy L. Sanders ever in fact acted as a general partner or that he intended at any time to be anything other than a limited partner. Upon the evidence presented, the court made a determination that Roy L. Sanders did enter into the limited partnership in good faith, believing that he was to be a limited partner and nothing else; that he took no part in the direction, control or management of the business and that there was never any intention on his part to be anything other than a limited partner. It is also noteworthy that no claim was ever made by appellant or by any other creditor that Roy L. Sanders was anything other than a limited partner until some two years after the business transactions here in question had been completed. He received no profits from the business and had withdrawn nothing from the partnership. When the partnership went into bankruptcy, notice of that fact was given to him; he did not file any claim or participate in any way in that proceeding as he would have had a right to do if he had been a general *502 partner. (11 U.S.C.A. 23.) We believe that there was ample evidence to justify the court below in finding that Roy L. Sanders in effect was a limited partner at all times.\n [8] Furthermore, in his answer respondent specifically renounced any claim to the property of the partnership. While we believe that at all times he was a limited partner, if the contention of the appellant that he became a general partner through the mere execution and publication of the certificate of fictitious name is correct, then the renunciation pursuant to section 15511 of the Corporations Code would serve to justify a judgment in his favor, as the trial court found that he believed that he was a limited partner and that he acted in good faith. (Giles v. Vette, 263 U.S. 553 [44 S. Ct. 157, 68 L. Ed. 441]; Gilman Paint & Varnish Co. v. Legum, 197 Md. 665 [80 A.2d 906]; Rathke v. Griffith, 36 Wash. 2d 394 [218 P.2d 757, 18 A.L.R. 2d 1349].)\n [9] As a second line of attack on the judgment appellant contends that even if Roy L. Sanders is only a limited partner, he is liable to the appellant by reason of the provision of the partnership agreement relied upon which reads as follows:\n \"The Limited Partner, Roy L. Sanders, shall contribute the sum of $100.00, and further shall, as his contribution to the partnership, act as a personal guarantor of real estate and business transactions of the partnership when the assets and credit of the partnership and the General Partners do not afford the required security for said transactions.\"\n Appellant advances his theory of liability in two branches: first, it is argued that by the specific language above quoted Roy L. Sanders undertook to pay all creditors if the required security for the transactions which they entered into with the partnership was absent; and second, it is suggested that the partnership agreement was one for the benefit of third persons, including the plaintiff.\n Initially, it seems clear that the quoted paragraph is not a current and continuing guaranty to all possible creditors of the partnership that Roy L. Sanders would pay everything that the partnership was not able to pay. The language used indicates the general function of Roy L. Sanders over and above his specific contribution of $100, to \"act as a personal guarantor\" in instances where he would be requested and would consent so to act in the course of specific business dealings which might arise; it seems unreasonable to think that anyone in this day and age would issue a general guaranty of all future dealings of an organization without an undertaking *503 specifically pointed to the business involved. This differing construction of the language of the limited partnership agreement is applicable to each of the two branches of appellant's argument and is a complete answer to his theory of liability dependent upon the terms of the agreement itself.\n [10] But even if the language means what the appellant incorrectly contends that it means, this would not make the guaranty effective in the absence of proof that at the time of contracting the debt in question the assets and credit of the partnership did not afford the required security for such transactions. It is elementary that a guarantor cannot be held beyond the express terms of his guaranty and that contracts of guaranty create no liability beyond what is expressed in them. (Hart, Schaffner & Marx v. Vaughn, 17 Cal. App. 2d 516, 519 [62 P.2d 377]; Murphy v. Hellman Commercial etc. Bank, 43 Cal. App. 579, 587 [185 P. 485]; San Francisco Theological Seminary v. Monterey County Gas & Electric Co., 179 Cal. 166 [175 P. 693].) On May 27, 1958, a Bank of America financial statement showed that C & L Construction Co., Ltd., had assets of $40,150 and liabilities of $2,799.90 (Exhibit 4). No evidence was introduced to show any change in the financial condition of the partnership through the remainder of 1958 or 1959. In January of 1960, 18 months after the last business transaction with appellant, the two general partners filed voluntary petitions in bankruptcy, and the limited partnership was also adjudicated a bankrupt. No proof was made by appellant that \"... the assets and credit of the partnership and the General Partners ... [did] not afford the required security for said transactions,\" as of the time of their occurrence. Furthermore, if this was a general guaranty in favor of creditors, there is no proof that credit was extended with knowledge of it and reliance upon it. (Calcot Assn., Ltd. v. Coast Cotton Mills, 140 Cal. App. 2d 268, 272 [295 P.2d 1]; 24 Am.Jur., Guaranty, 16, p. 885.) Appellant distinguishes between his claims of liability on theories of guaranty and third party beneficiary by arguing that proof of knowledge of the contract and reliance thereon are not necessary as to third parties beneficiary. In view of our construction of the contract of limited partnership, this distinction is immaterial. The trial court correctly held that there was no liability to appellant by reason of the partnership agreement.\n [11] There is no merit in the claim that the findings are fatally defective. (a) Appellant protests that he alleged in *504 paragraph V of his fifth cause of action that at all times mentioned the credit of the partnership known as C & L Construction Co., Ltd., and of the general partners of said partnership did not afford the required security for said transaction but that the court failed to make a finding either way in regard to this allegation. However, it is a respected general rule that when there is no evidence in the record which would have supported a finding favorable to an appellant, the failure to make a finding on the subject does not constitute error. As is said in 2 Witkin, California Procedure, Trial, section 119, page 1851:\n \"The appellant may justly complain if he introduces evidence sufficient to support a finding in his favor on a material issue, and the court fails to make any finding thereon. But if he produces no evidence on the issue, or the evidence is such that the finding would necessarily be adverse to him, he suffers no prejudice from the failure to make it, and there is no reversible error. [Citing cases.]\" (See Winslow v. Gohransen, 88 Cal. 450 [26 P. 504]; Pry Corp. of America v. Leach, 177 Cal. App. 2d 632 [2 Cal. Rptr. 425]; Bank of America v. O'Shields, 128 Cal. App. 2d 212, 219 [275 P.2d 153].)\n As already pointed out, the only evidence introduced on this subject which related to the approximate time of contracting the liabilities was a financial statement of the Bank of America dated May 27, 1958, which showed that the partnership had assets of $40,150 as against liabilities of only $2,799.90. It is apparent that if a finding had been made it would have been adverse to the appellant and that appellant has no right to complain of its absence.\n [12] (b) Appellant insists that the court should have made a finding that the certificate of fictitious name was duly and regularly filed and published. However, there is no pleading which specifically raises any such issue, and it is elementary that findings should not be made on evidentiary facts, but must be confined to the ultimate facts, and appellant has no just cause to complain. (Morrow v. Morrow, 201 Cal. App. 2d 235, 239 [20 Cal. Rptr. 338]; Lewetzow v. Sapiro, 188 Cal. App. 2d 841, 845 [11 Cal. Rptr. 126]; Siquig v. West Coast Pickle Co., 161 Cal. App. 2d 254, 258 [326 P.2d 596].)\n [13] (c) Appellant also asserts that the court made no specific finding as to whether Roy L. Sanders was a limited or general partner. It seems clear to us that the court did determine that he was a limited partner; although not using those specific words, there are findings that respondent is not *505 indebted to appellant, that respondent did execute an amended certificate of limited partnership, that he acted in good faith in executing the amended certificate and believed that he was a limited partner. The findings sufficiently show the trial court's view that the respondent was a limited partner.\n [14] (d) Appellant criticizes the trial court for not making a finding that the limited partnership certificate had been filed within a reasonable time after its execution. It was signed on May 5, 1958, filed on May 21 and recorded May 26, 1958. Appellant cites Stowe v. Merrilees, 6 Cal. App. 2d 217, 222 [44 P.2d 368], in support of its claim, but as respondent correctly points out, that case does not hold that the delay voided the certificate; it was there said that the limited partnership statute must be liberally construed, that a \"reasonable time is allowed\" for completing the filing and publication, that the party asserting the alleged defects through delay had done business with the partnership after the certificate was recorded \"and, as to him, a valid limited partnership had been formed.\" The evidence shows that appellant did business with the limited partnership for a substantial period of time after May 26, 1958, so that if a finding had been made it would necessarily have been adverse to appellant; appellant cannot now complain.\n [15a] (e) Appellant argues that finding No. 7 of the trial court is only a conclusion of law. The finding states: \"It is true that defendant Roy L. Sanders is not indebted to plaintiff in any sum whatsoever.\" Appellant contends that this is not a finding of fact, citing Ryan v. Jacques, 103 Cal. 280, 286 [37 P. 186], and Adams-Campbell Co. v. Jones, 71 Cal. App. 723, 726 [236 P. 322].\n [16] Respondent, however, properly maintains that the seventh finding is supported by adequate evidence and is a true and correct finding of fact which disposes of the appeal, the one finding which determines the cause as far as appellant and respondent are concerned and points out that if findings are made on issues that determine the case, other issues become immaterial and a failure to make findings does not constitute prejudicial error. (Richter v. Walker, 36 Cal. 2d 634, 640 [226 P.2d 593]; Broadway Federal etc. Loan Assn. v. Howard, 133 Cal. App. 2d 382, 396 [285 P.2d 61]; Leonard v. Fallas, 51 Cal. 2d 649, 653 [335 P.2d 665]; Berk v. Twenty-nine Palms Ranchos, Inc., 201 Cal. App. 2d 625, 634 [20 Cal. Rptr. 144]; Lattanzi v. San Moritz Club, 202 Cal. App. 2d 546, 551 [20 Cal. Rptr. 847].) *506\n [15b] The definitive and compelling answer to this claim of appellant lies in the fact that he saw fit to sue by common count in several of his causes of action, and that the finding is properly responsive to his own pleading.\n \"... indebtedness is 'one of those peculiar statements which may constitute either a finding of fact or a conclusion of law, according to the connection in which or the circumstances under which it is employed.' (Lynip v. Alturas School Dist., supra [24 Cal. App. 426, 435 (141 P. 835)].) Thus, where a general pleading of indebtedness is proper, as in actions on the common counts, a finding in the language of the pleading is likewise sufficient. (Wood v. Mesmer (1920) 46 Cal. App. 257, 259, [189 P. 134]; Biurrun v. Elizalde (1925) 75 Cal. App. 44, 55 [242 P. 109].)\" (2 Witkin, California Procedure, Trial, 113, p. 1845.)\n The judgment is affirmed.\n Brown (R.M.), J., and Stone, J., concurred.\n", "ocr": false, "opinion_id": 2215461 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://publicdocs.courts.mi.gov:81/SCT/PUBLIC/ORDERS/20120521_S144505_38_144505_2012-05-21_or.pdf", "author_id": null, "opinion_text": "Order Michigan Supreme Court\n Lansing, Michigan\n\n May 21, 2012 Robert P. Young, Jr.,\n Chief Justice\n\n Michael F. Cavanagh\n Marilyn Kelly\n 144505 Stephen J. Markman\n Diane M. Hathaway\n Mary Beth Kelly\n PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,\n Plaintiff-Appellee, Justices\n\n\n v SC: 144505\n COA: 301051\n Berrien CC: 2010-001529-FC\n KENNETH JEROME HUGHES, III,\n Defendant-Appellant.\n\n _________________________________________/\n\n On order of the Court, the application for leave to appeal the December 22, 2011\n judgment of the Court of Appeals is considered, and it is DENIED, because we are not\n persuaded that the questions presented should be reviewed by this Court.\n\n\n\n\n I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the\n foregoing is a true and complete copy of the order entered at the direction of the Court.\n May 21, 2012 _________________________________________\n d0514 Clerk\n\f", "ocr": false, "opinion_id": 824827 } ]