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[ "67 S. Ct. 1168", "331 U.S. 132", "91 L. Ed. 1391", "1947 U.S. LEXIS 2899" ]

[ { "author_str": "Murphy", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2357, "opinion_text": "\n331 U.S. 132 (1947)\nAYRSHIRE COLLIERIES CORP. ET AL.\nv.\nUNITED STATES ET AL.\nNo. 467.\nSupreme Court of United States.\nArgued April 7, 8, 1947.\nDecided April 28, 1947.\nAPPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF INDIANA.\nEarl B. Wilkinson argued the cause for Ayrshire Collieries Corporation et al., appellants. With him on the brief were Arthur R. Hall and J. Alfred Moran.\n*133 Carson L. Taylor argued the cause for the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, appellant. With him on the brief were William L. Hunter, A.N. Whitlock and M.L. Bluhm.\nDaniel W. Knowlton argued the cause for the United States and the Interstate Commerce Commission, appellees. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Berge, Edward Dumbauld, David O. Mathews, Nelson Thomas and Daniel H. Kunkel.\nCharles W. Stadell argued the cause for the Central Illinois District Coal Traffic Bureau et al., appellees. With him on the brief was Erle J. Zoll, Jr., who submitted on brief for the Alton Railroad Company et al., appellees.\nMR. JUSTICE MURPHY delivered the opinion of the Court.\nAppellants filed complaints in the United States District Court for the Southern District of Indiana seeking a temporary stay, an interlocutory injunction and a permanent injunction against the enforcement of an order of the Interstate Commerce Commission, dated July 9, 1945. This order had been entered in connection with findings by the Commission that certain railroad tariffs were unlawful and that other rates should be prescribed in lieu thereof. Coal to Beloit, Wis., and Northern Illinois, 263 I.C.C. 179.\nThe complaints requested that the court convene a specially constituted court of three judges, as required by the Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208, 220, 28 U.S.C. § 47, to hear the motions \"for a temporary or interlocutory injunction and for final hearing in this proceeding.\" Circuit Judge Evans and District *134 Judge Igoe were then assigned to sit with District Judge Baltzell to hear and determine these applications, and the cases were consolidated for all purposes. The applications for a temporary stay and an interlocutory injunction were assigned for hearing on January 3, 1946. But on that day, it appearing that the Commission had postponed the effective date of its order to April 8, 1946, the court ordered that \"the hearing upon the petitioners' application for an interlocutory injunction and temporary stay heretofore assigned and set for January 3, 1946, be and the same hereby is, continued to the day of final hearing herein and that said final hearing shall be had on March 25, 1946. . . .\" The Commission made a further postponement of the effective date of its order to July 8, 1946, in order that the carriers subject to the order might avoid the necessity of preparing and filing new tariffs prior to the termination of the court proceeding. It also appeared that the illness of Judge Baltzell made it impossible for the court to convene as scheduled on March 25. And so the court reassigned the case for trial on April 22, with Judge Baltzell being replaced by Circuit Judge Major.\nArgument was held on April 22 before Circuit Judges Evans and Major and District Judge Igoe at the \"final hearing upon the plaintiffs' petitions for a permanent injunction.\" On June 5, 1946, findings of fact and conclusions of law were filed and entered under the signatures of Judges Major and Igoe; the Commission's order was sustained in all respects and a judgment was entered dismissing the complaints. The following notation was made in the margin of the findings of fact and conclusions of law: \"Judge Evan A. Evans became ill subsequent to the hearing of these causes and he is and has been unable to participate in a determination thereof. The findings of fact, conclusions of law and judgment have therefore been entered by the remaining judges of such court.\"\n*135 The case was brought here on direct appeal.[1] We are of the opinion that the District Court's judgment was void, only two of the three judges having participated in the determination of the case. We accordingly do not reach the issues involving the Commission's authority and the merits of its order, issues that have been argued at length before us.\nThe applicable provisions of the Urgent Deficiencies Act, 38 Stat. 220, 28 U.S.C. § 47, state: \". . . No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, he shall immediately call to his assistance to hear and determine the application two other judges. . . . Provided, That in cases where irreparable damage would otherwise ensue to the petitioner, a majority of said three judges concurring, may, on hearing, . . . allow a temporary stay or suspension, in whole or in part, of the operation of the order of the Interstate Commerce Commission for not more than sixty days . . . and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said commission the same requirement *136 as to judges and the same procedure as to expedition and appeal shall apply. . . .\"\nThe requirement that three judges hear and determine suits to enjoin or set aside Interstate Commerce Commission orders had its origin in the provisions of the Expediting Act of February 11, 1903, 32 Stat. 823. That Act required three circuit judges, or two circuit judges and a district judge, to hear cases brought by the United States to enforce the antitrust and commerce laws. This feature was then extended by the Hepburn Act of 1906, 34 Stat. 584, 592, to all suits brought to enforce or enjoin any order of the Interstate Commerce Commission, \"including the hearing on an application for a preliminary injunction.\" The Act of June 18, 1910, 36 Stat. 539, created the Commerce Court and vested in it jurisdiction over suits to enjoin Commission orders; that court was composed of five judges, four of them constituting a quorum and at least three being required to concur in all decisions. Finally, the Urgent Deficiencies Act of 1913 transferred this jurisdiction to three-judge district courts, as detailed above. United States v. Griffin, 303 U.S. 226, 232-233.\nThe policy of requiring the deliberation of three judges in suits to enjoin the enforcement of Interstate Commerce Commission orders is thus a well-established one. It is grounded in the legislative desire to guard against ill-considered action by a single judge in the important and complex situations frequently presented by Commission orders. Such matters are deemed to warrant the full deliberation which a court of three judges is likely to secure.\nThis requirement, of course, is necessarily technical. It is not a broad social measure to be construed with liberality. It is a technical rule of procedure to be applied as such. See Phillips v. United States, 312 U.S. 246, 250-251. *137 While due consideration must be given to the statutory policy of expediting the disposition of applications to enjoin the enforcement of Commission orders, the plain language of the Urgent Deficiencies Act compels strict adherence to the command that such applications \"shall be heard and determined by three judges, of whom at least one shall be a circuit judge.\" And we must insist upon obedience to that legislative will even though the disposition of some applications may thereby be delayed.\nWhen the framers of the Urgent Deficiencies Act declared that these applications \"shall be heard and determined by three judges,\" we assume that they meant exactly what they said. The requirement that three judges hear and determine an application means that they must adjudicate the issues of law and fact which are presented by the case, a function which implies that they must weigh the arguments and testimony offered by both sides and vote either to grant or deny the relief sought by the moving party.[2] In addition, \"Compliance with the statute *138 requires the assent of the three judges given after the application is made evidenced by their signatures or an announcement in open court with three judges sitting followed by a formal order tested as they direct.\" Cumberland Tel. Co. v. Public Service Commission, 260 U.S. 212, 218. All three judges, in other words, must fully perform the judicial function.[3] See Dohany v. Rogers, 281 U.S. 362, 369-370.\nIt is significant that this Act makes no provision for a quorum of less than three judges. Two judges of a three-judge circuit court of appeals, on the other hand, ordinarily constitute a statutory quorum for the hearing and determination of cases.[4] 28 U.S.C. § 212. The absence of such a quorum provision as to three-judge district courts is a strong corroborating indication that participation by all three judges is necessary to render a valid decision. *139 The Act provides, it is true, that a decision may be reached by a three-judge court if a \"majority of said three judges\" concur. But that means only that the decision of the three judges need not be unanimous; it does not imply that two judges alone may hear and determine the case.\nMoreover, we cannot say that the failure of the third judge to participate in the determination of a case, where the other two are in agreement as to the result, is without significance. The decision reached by two judges is not necessarily the one which might have been reached had they had the benefit of the views and conclusions of the third judge. And should the latter have publicly indicated an opinion differing from that of his colleagues, his position might be helpful to the litigants and to this Court if the case were appealed.\nIt is readily apparent that this statutory requirement has not been met in this case. While all three judges of the specially constituted court heard the oral argument, only two of them participated in the determination of the case. The findings of fact, the conclusions of law and the judgment were all entered without the approval, concurrence or dissent of the third judge. He thus missed the very essence of the judicial function in this case — the actual adjudication of the issues of law and fact. All that we have here is an adjudication by two judges. But under the statute it is not enough that there be an adjudication by two judges. They lack any statutory authority to hear and determine an application to enjoin the enforcement of a Commission order. Any action of theirs in granting or denying such an application is as void as similar action by a single judge. See Cumberland Tel. Co. v. Public Service Commission, supra, 218-219; Stratton v. St. Louis S.W.R. Co., 282 U.S. 10, 16.\nIt is suggested, however, that the three-judge requirement applies only to applications for interlocutory injunctions *140 against the enforcement of Interstate Commerce Commission orders; and since the decision in this case was one denying a permanent injunction, no complaint can be made that the decision was rendered by less than three judges. Reference is made in this respect to § 266 of the Judicial Code, 28 U.S.C. § 380, which deals with injunctions against the enforcement of state statutes or state administrative orders on the ground of unconstitutionality of the statute involved. Prior to 1925, that section indicated that a three-judge court was necessary only to pass upon applications for interlocutory injunctions. A single judge had jurisdiction to hear the cause on final hearing and to grant or deny a permanent injunction, thereby permitting him to reconsider and decide questions already passed upon by the three judges on the application for an interlocutory injunction. To end that anomalous situation, an amendment was added by the Act of February 13, 1925, 43 Stat. 938, to the effect that \"The requirement respecting the presence of three judges shall also apply to the final hearing in such suit in the district court . .. .\" The problem then arose as to whether the words \"such suit\" in this amendment referred only to a suit in which an interlocutory injunction was in fact sought or to a suit in which it might have been, but was not, requested. A series of decisions by this Court has made it clear that the former interpretation is the correct one. A three-judge court must be convened for final hearings on applications for permanent injunctions against the enforcement of state statutes only where an interlocutory injunction has been sought and pressed to a hearing. Moore v. Fidelity & Deposit Co., 272 U.S. 317; Smith v. Wilson, 273 U.S. 388; Public Service Commission v. Wisconsin Telephone Co., 289 U.S. 67; McCart v. Indianapolis Water Co., 302 U.S. 419. Where an interlocutory injunction is not *141 sought and pressed, a single judge may hear and determine the application for a permanent injunction.\nBy analogy, it is claimed that the same rule should obtain under the Urgent Deficiencies Act, that a three-judge court should be necessary for final hearings on applications for permanent injunctions only where interlocutory injunctions have been sought and pressed. While it is admitted that an interlocutory injunction was sought in this case, the argument is made that the application was not pressed to a hearing, the need for such temporary relief having been eliminated by the postponement of the effective date of the Commission order. The whole emphasis of the Act, like that of § 266 of the Judicial Code, is said to be directed toward the prevention of improvident issuance of interlocutory injunctions or restraining orders. Since there was no such danger in this case, the conclusion is reached that the underlying reason for the convening of a three-judge district court is absent here.\nThe answer to this argument is to be found in the clear language of the Act itself. It provides simply: \"and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said commission the same requirement as to judges and the same procedure as to expedition and appeal shall apply.\" Unlike § 266 of the Judicial Code, there is no reference here to \"such suit\" — to a suit where an interlocutory injunction is sought and pressed. Rather there is an unambiguous reference to the final hearing of \"any suit\" brought to enjoin the enforcement of a Commission order. That can only mean any suit seeking permanent relief, regardless of whether interlocutory relief is also requested. And since \"the same requirement as to judges\" is to apply to the final hearing of any suit, three judges must hear and determine the matter.\n*142 In addition, this portion of the Urgent Deficiencies Act was part of the original enactment and was not added to meet a problem like that which arose under § 266 of the Judicial Code. It was drawn against a background of prior statutes which provided for injunctive relief against the enforcement of Commission orders without regard to the presence of a request for temporary relief. The Hepburn Act required a three-judge court for \"all\" suits brought to enjoin a Commission order, \"including the hearing on an application for a preliminary injunction,\" — a clear indication that a three-judge court was also necessary where only permanent relief was sought. And the statute which created the Commerce Court, from which the district courts inherited their jurisdiction in this instance, referred to \"cases\" brought to enjoin or set aside Commission orders, making no distinction as to those in which only permanent relief was sought. We can only conclude that the framers of the Urgent Deficiencies Act meant to require a three-judge court in any suit brought to enjoin the enforcement of a Commission order, including a suit where an interlocutory injunction is not sought and pressed to a hearing.\nTime and again this Court has referred to the three-judge court requirement under this Act without making the distinction which has been made under § 266 of the Judicial Code. Lambert Co. v. Baltimore & Ohio R. Co., 258 U.S. 377, 381-382; Baltimore & Ohio R. Co. v. United States, 279 U.S. 781, 784-785; United States v. Griffin, supra, 232-233. Indeed, without passing upon the precise problem, this Court has affirmed judgments of three-judge district courts which had granted permanent injunctions in cases where no interlocutory injunctions had been sought or pressed. See, e.g., United States v. Idaho, 298 U.S. 105. And see Hudson & Manhattan R. Co. v. United States, 28 F. Supp. 137, 140.\n*143 The language and background of the Act, which have been augmented by the consistent understanding of this Court,[5] thus combine to require the use of a three-judge district court in all cases in which a permanent or interlocutory injunction is sought against the enforcement of a Commission order. It matters not in a particular case whether an interlocutory injunction is requested or whether, if such relief is asked, the application is pressed to a hearing. This Act seeks to guard against more than an improvident issuance of interlocutory injunctions by single judges; it also seeks to prevent single judges from *144 issuing permanent injunctions.[6] To that end, Congress has required the use of a three-judge court and we are bound to carry out the letter and the spirit of that requirement. That two judges might, in a particular instance, give the same protection against single-judge action as three judges does not justify ignoring or relaxing the plain requirement that three judges hear and determine all applications to enjoin the enforcement of Commission orders. If such an amendment to the Act is to be made, it must be made by Congress rather than by this Court.\nSince the judgment entered by two judges in this case was void and without statutory authority, we have no alternative but to vacate the judgment and dismiss the appeal. Appellants will be free, of course, to suggest that the District Court be reconvened in accordance with the Act so that three judges may hear and determine the application to enjoin the Commission order in issue.\nSo ordered.\nMR. JUSTICE RUTLEDGE dissents.\nNOTES\n[1] Urgent Deficiencies Act of October 22, 1913, 38 Stat. 208, 219, 220, 28 U.S.C. §§ 45 and 47a; Judicial Code § 238, as amended by the Act of February 13, 1925, 43 Stat. 936, 938, 28 U.S.C. § 345.\n[2] In Ohio v. United States, 6 F. Supp. 386, affirmed, 292 U.S. 498, a case under the Urgent Deficiencies Act was argued before a court of three judges, all of whom participated in the discussions leading to a determination of the case. One of the judges died before the decision was announced. An opinion written by the judge who died was found among his papers after his death and was published as the opinion of the court, concurred in by the other two judges. The opinion had been written pursuant to an arrangement made at a prior conference of the three judges. The findings of fact and conclusions of law, which were filed some time after the opinion, were signed only by the two surviving judges. The matter, however, was not raised by the parties on appeal and was not considered or decided by this Court. The mere fact that the case was entertained by this Court is no basis for considering it as authoritative on the jurisdictional issue, it being the firm policy of this Court not to recognize the exercise of jurisdiction as precedent where the issue was ignored. United States v. More, 3 Cranch 159, 172; Snow v. United States, 118 U.S. 346, 354-355; Cross v. Burke, 146 U.S. 82, 87; Louisville Trust Co. v. Knott, 191 U.S. 225, 236; Arant v. Lane, 245 U.S. 166, 170.\n\nCf. Frellsen & Co. v. Crandell, 217 U.S. 71, where this Court, after Mr. Justice Brewer's death, adopted as its opinion one previously written by him.\n[3] In James v. Clements, 217 F. 51, a case had been argued and submitted to a three-judge circuit court of appeals and a decision rendered by a divided vote. A petition for rehearing had been filed and the court had decided that the prior decision was erroneous and that the opposite result should be announced without further briefs or argument. But before an order to that effect could be promulgated, one of the judges died. Since the other two judges were divided in their views, the case was restored for argument before a full bench of three judges. See also Ryan v. Pennsylvania Public Utility Commission, 44 F. Supp. 912, 914.\n[4] But see 32 Stat. 823, as amended by 58 Stat. 272, 15 U.S.C. (Supp. V, 1946) § 29, which provides that the senior circuit judge and the two circuit judges next in order of seniority shall \"hear and determine\" appeals from district court judgments in antitrust cases where this Court is unable to consider the appeals because of a lack of a quorum. United States v. Aluminum Co. of America, 148 F.2d 416.\n[5] The same understanding, that the Urgent Deficiencies Act requires three judges for all applications to enjoin Commission orders while § 266 of the Judicial Code requires a three-judge court only for applications for interlocutory injunctions, is shown in the remarks of Mr. Justice Van Devanter at the Hearing before the Subcommittee of the Senate Committee on the Judiciary on S. 2060 and S. 2061, 68th Cong., 1st Sess., p. 33 (S. 2060 later became the Act of February 13, 1925):\n\n\"Section 238 as amended and reenacted in the bill would permit cases falling within four particular classes, and those only, to come from the district courts directly to the Supreme Court. The first and fourth classes are confined to antitrust and interstate commerce cases covered by the second section of the expedition act of February 11, 1903, and the provision in the act of October 22, 1913, respecting the enforcement, suspension, etc., of orders of the Interstate Commerce Commission. These cases are heard in the district court by three judges, one of whom must be a circuit judge. This and the character of the cases make it suggest that they should go directly to the Supreme Court rather than through the circuit courts of appeals. The third class is confined to cases wherein the enforcement of a State statute or of an order of a State board or commission is suspended by an interlocutory injunction. Applications for such injunctions are heard in the district court by three judges, one being a circuit judge. These injunctions now go directly to the Supreme Court for review, and the bill continues that procedure. . . .\"\nSee also Mr. Justice Van Devanter's remarks at Hearing before House Committee on the Judiciary on H.R. 8206, 68th Cong., 2d Sess., p. 15.\n[6] See also 50 Stat. 752, 28 U.S.C. § 380a, providing that no interlocutory or permanent injunction restraining the enforcement of, or setting aside, any Act of Congress on the ground of unconstitutionality shall be issued by a district court, unless the application shall be presented to a circuit or district judge and shall be heard and determined by three judges, of whom at least one shall be a circuit judge.\n\n", "ocr": false, "opinion_id": 104421 } ]

[ "67 S. Ct. 798", "330 U.S. 464", "91 L. Ed. 1024", "1947 U.S. LEXIS 2550" ]

[ { "author_str": "Douglas", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 904, "opinion_text": "\n330 U.S. 464 (1947)\nAETNA CASUALTY & SURETY CO. ET AL.\nv.\nFLOWERS.\nNo. 432.\nSupreme Court of United States.\nArgued February 13, 1947.\nDecided March 10, 1947.\nCERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.\nClyde W. Key argued the cause and filed a brief for petitioners.\nRespondent submitted on brief pro se.\n*465 MR. JUSTICE DOUGLAS delivered the opinion of the Court.\nThis action for death benefits under the Workmen's Compensation Law of Tennessee (Tenn. Code Ann. 1934, § 6851 et seq.) was commenced in 1945 by plaintiff-respondent in the Chancery Court of Hawkins County, Tennessee. The defendants-petitioners are the former employer of her deceased husband and the employer's insurance carrier. Service was had on the insurance carrier in Hawkins County, and on the employer in Knox County. Respondent is a citizen of Tennessee, the employer is a North Carolina corporation, and the insurance carrier is a Connecticut corporation. The complaint alleged that respondent's husband died as the result of an accident occurring in the course of his employment. Burial expenses plus benefits in the amount of $5,000, the maximum under the Tennessee statute,[1] were sought on behalf of respondent and her two minor children, aged twelve and fifteen.\nOn May 28, 1945, petitioners mailed a notice of intention to file a petition for removal to a federal District Court which was received by respondent's attorney on the morning of May 29. The petition for removal was filed in the Chancery Court the same day, and on June 5 the removal order issued. In the federal court the petitioners moved for dismissal on the ground that venue was not properly laid in the Hawkins County Court, so that *466 under Tennessee law that court had lacked jurisdiction.[2] Respondent sought a remand of the case to the state court, contending that the requisites of diversity jurisdiction had not been met either as to jurisdictional amount or as to proper notice of filing of the removal petition, and that the suit was not removable because not one of a civil nature in law or equity. The District Court concluded that Hawkins County was not the proper venue. It thereupon dismissed the action without reaching the questions raised by respondent's motion for a remand.\nThe judgment was reversed on appeal. 154 F.2d 881. The Circuit Court of Appeals held that the jurisdictional minimum of $3,000 in controversy (Judicial Code § 24, 28 U.S.C. § 41 (1)) was not present, and therefore ordered the case remanded to the state court. In this disposition the Circuit Court of Appeals reached neither the state venue question raised by petitioners, nor respondent's contention that the required notice of the filing of the removal petition was lacking. We granted certiorari because of an apparent conflict with Brotherhood of Locomotive Firemen v. Pinkston, 293 U.S. 96, as to the jurisdictional minimum requirement.\nFirst. It is suggested that a decision of a Circuit Court of Appeals ordering remand of a case to a state court is not reviewable. And it is also said that we lack power to review the action of the Circuit Court of Appeals, since the mandate of that court has issued and the District Court has remanded the cause to the state court.\nAn order of a District Court remanding a cause to the state court from whence it came is not appealable, and hence may not be reviewed either in the Circuit Court *467 of Appeals or here. Judicial Code § 28, 28 U.S.C. § 71; Kloeb v. Armour & Co., 311 U.S. 199; Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563; United States v. Rice, 327 U.S. 742. But no such limitation affects our authority to review an action of the Circuit Court of Appeals, directing a remand to a state court. Gay v. Ruff, 292 U.S. 25. Nor does the fact that the mandate of the Circuit Court of Appeals has issued defeat this Court's jurisdiction. Carr v. Zaja, 283 U.S. 52, and cases cited.\nSecond. We think that the jurisdictional amount of $3,000 was involved in this suit. The contrary conclusion of the Circuit Court of Appeals was based on the nature of the award under the Tennessee statute. The award may be paid in installments at regular intervals by the employer or by a trustee with whom the amount of the award, reduced to present value, has been deposited. Tenn. Code § 6893. Moreover, the death or remarriage of respondent, plus the death or attainment of the age of eighteen by the children, would terminate all payments. Tenn. Code § 6883. Since an award to respondent would be payable in installments, and by operation of conditions subsequent the total payments might never reach $3,000, the Circuit Court of Appeals concluded that the jurisdictional amount was lacking.\nIf this case were one where judgment could be entered only for the installments due at the commencement of the suit (cf. New York Life Ins. Co. v. Viglas, 297 U.S. 672, 678), future installments could not be considered in determining whether the jurisdictional amount was involved, even though the judgment would be determinative of liability for future installments as they accrued. Wright v. Mutual Life Ins. Co., 19 F.2d 117, aff'd. 276 U.S. 602. Cf. Button v. Mutual Life Ins. Co., 48 F. Supp. 168. But this is not that type of case. For the Tennessee statute which creates liability for the award contemplates a single action for the determination of claimant's *468 right to benefits and a single judgment for the award granted. See Tenn. Code §§ 6880, 6881, 6890, 6891, 6893; Shockley v. Morristown Produce & Ice Co., 171 Tenn. 591, 106 S.W.2d 562.\nNor does the fact that it cannot be known as a matter of absolute certainty that the amount which may ultimately be paid, if respondent prevails, will exceed $3,000, mean that the jurisdictional amount is lacking. This Court has rejected such a restrictive interpretation of the statute creating diversity jurisdiction. It has held that a possibility that payments will terminate before the total reaches the jurisdictional minimum is immaterial if the right to all the payments is in issue. Brotherhood of Locomotive Firemen v. Pinkston, supra; Thompson v. Thompson, 226 U.S. 551. Future payments are not in any proper sense contingent, although they may be decreased or cut off altogether by the operation of conditions subsequent. Thompson v. Thompson, supra, p. 560. And there is no suggestion that by reason of life expectancy or law of averages the maximum amount recoverable can be expected to fall below the jurisdictional minimum. Cf. Brotherhood of Locomotive Firemen v. Pinkston, supra, p. 101. Moreover, the computation of the maximum amount recoverable is not complicated by the necessity of determining the life expectancy of respondent.[3] Cf. Thompson v. Thompson, supra, p. 559; Brotherhood of Locomotive Firemen v. Pinkston, supra, p. 100.\nThird. Respondent, as is her right, United States v. Ballard, 322 U.S. 78, 88, and cases cited, seeks to support the action of the Circuit Court of Appeals on other grounds. But those questions were not passed upon by that court nor adequately presented here. So we deem it more appropriate to remand the case to the Circuit Court of Appeals so it may consider those questions. United States v. Ballard, supra.\nReversed.\nNOTES\n[1] Death benefits are provided in the amount of 60% of the average weekly wages of the employee (as computed in accordance with Tenn. Code § 6852 (c)), but payments may not exceed $18 per week, nor continue for more than 400 weeks. § 6880; § 6883 (17). In addition there is a ceiling of $5,000 on total benefits exclusive of burial and certain other expenses. § 6881. See Haynes v. Columbia Pictures Corp., 178 Tenn. 648, 162 S.W.2d 383. The complaint alleged that 60% of the average weekly wages for the statutory period would exceed $5,000.\n[2] The contention was that proper venue lay only in Roane County where, it was alleged, the accident occurred and the business of the employer is conducted. It was argued that service on the insurer in Hawkins County did not give the Hawkins County Court jurisdiction of the case.\n[3] See note 1, supra.\n\n", "ocr": false, "opinion_id": 104390 } ]

[ "100 L. Ed. 2d 1366", "76 S. Ct. 958", "351 U.S. 502", "1956 U.S. LEXIS 1641" ]

[ { "author_str": "Minton", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*503Mr. Justice Minton\ndelivered the opinion of the Court.\nThe question we have for decision here is whether petitioner, a clerical employee of respondent railroad, is within the coverage of the Federal Employers’ Liability Act. § 1, 35 Stat. 65, as amended, 53 Stat. 1404, 45 U. S. C. § 51. Petitioner is employed entirely in respondent’s office building in Philadelphia. Her duties consist of filing original tracings of all of respondent’s engines, cars, parts, tracks, bridges, and other structures, from which blueprints of those items are made. There are some 325,000 tracings on file in the office in which petitioner works. Whenever an order for blueprints comes in from anywhere in respondent’s system, it is petitioner’s responsibility to fill the order by securing the correct tracings from the files. These she takes to the blueprint maker in the same office building. After the blueprints are made, it is petitioner’s further duty to return the original tracings to the appropriate file. About 67% of the blueprints so made are sent to points outside Pennsylvania. The files which petitioner attends are the sole depository of the original tracings of the structural details of all of respondent’s rolling stock, trackage, and other equipment and installations, and as such represent a fund of documents without which maintenance of the operating system would be impossible.\nPetitioner was injured when a cracked window pane in her office blew in upon her. She brought suit for personal injury under the Federal Employers’ Liability Act. On respondent’s motion to dismiss, the District Court held that petitioner was not within the coverage of § 1 of the Act and, there being no diversity of citizenship between the parties, dismissed the complaint for lack of jurisdiction. The Court of Appeals affirmed. 227 F. 2d 810. *504We granted certiorari because of the importance of the question presented in the administration of the Act. 350 U. S.965.\nAs originally enacted, § 1 provided that every railroad, “while engaging” in interstate commerce,\n“shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 35 Stat. 65.\nA further paragraph was added to the section in 1939, and it is clear that two specific problems which the amendment sought at least to remedy were the results of this Court’s holdings that, at the moment of his injury, the employee as well as the railroad had to be engaged in interstate commerce in order to come within the coverage of § 1, and that employees engaged in construction of new facilities were not covered. S. Rep. No. 661, 76th Cong., 1st Sess. 2-3; Southern Pacific Co. v. Gileo, decided today, ante, p. 493. The amendment took the form of an expanded definition of “person . . . employed” in interstate commerce. The amendment reads:\n“Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act . . . .” 53 Stat. 1404.\n*505No argument is made that Congress could not constitutionally include petitioner within the coverage of the Act. The argument is that the amendment was narrowly drawn to remedy specific evils and that to construe it to include petitioner would amount to inclusion in the Act of virtually all railroad employees — a result which respondent assumes is unintended and undesirable. The argument takes several forms. First, it is said that “commerce” in the Act means only transportation and that petitioner is not employed in transportation. See Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 559-560. But the interstate commerce in which respondent is engaged is interstate transportation. If “any part” of petitioner’s duties is in “furtherance” of or substantially affects interstate commerce, it also is in “furtherance” of or substantially affects interstate transportation. The. test for coverage under the amendment is not whether the employee is engaged in transportation, but rather whether what he does in any way furthers or substantially affects transportation. Nor can we resolve the issue presented here in terms of whether or not clerical employees as a class are excluded from the benefits of the statute. The 1939 amendment was designed to obliterate fine distinctions as to coverage between employees who, for the purpose of this remedial legislation, should be treated alike. There is no meaningful distinction, in terms of whether the employee’s duties are clerical or not, between petitioner and, for illustration, an assistant chief timekeeper, Straub v. Reading Co., 220 F. 2d 177, or a messenger boy carrying waybills and grain orders between separate local offices and freight stations, Bowers v. Wabash R. Co., 246 S. W. 2d 535, or a lumber inspector hurt while inspecting ties at a lumber company, Ericksen v. Southern Pacific Co., 39 Cal. 2d 374, 246 P. 2d 642 — all of whom have been held covered by the 1939 amendment. See also Lillie v. Thompson, 332 U. S. 459. Nor are the benefits of the *506Act limited to those exposed to the special hazards of the railroad industry. The Act has not been so interpreted, and the 1939 amendment specifically affords protection to “any employee” whose duties bring him within that amendment. There is no basis in the language of § 1 for confining liability of the railroad so as to exclude any class of railroad employees as a class. The benefits of the Act are not limited to those who have cinders in their hair, soot on their faces, or callouses on their hands. Section 1 cannot be interpreted to exclude petitioner from its benefits without further consideration of the function she performs and its impact on interstate commerce.\nWe think that the present petitioner is employed by the respondent in interstate commerce within the meaning of the 1939 amendment to § 1. Although the amendment may have been prompted by a specific desire to obviate certain court-made rules limiting coverage, the language used goes far beyond that narrow objective. It evinces a purpose to expand coverage substantially as well as to avoid narrow distinctions in deciding questions of coverage. Under the amendment, it is the “duties” of the employee that must further or affect commerce, and it is enough if “any part” of those duties has the requisite effect. The statute commands us to examine the purpose and effect of the employee’s function in the railroad’s interstate operation, without limitation to nonclerical employees or determination on the basis of the employee’s importance as an individual in the railroad’s organization.\nHere respondent railroad has chosen to arrange its operations so that repairs and construction anywhere within its system which require blueprints must go through its Philadelphia office. No such work can be done without recourse to the files of 325,000 original tracings in petitioner’s custody. Loss or misplacing of those tracings could promptly cause delay, confusion, or worse in the day-to-day operation of respondent’s lines. If all em*507ployees who perform petitioner’s duties were removed from service, respondent could not conduct its operations without a change in its organizational system. To recognize this is to attribute to petitioner neither an exaggerated nor an attenuated relationship to respondent’s transportation system. The filing of tracings and the dispatch of blueprints taken from them comprise a direct link in the maintenance of respondent’s lines and rolling stock. Together with the makers of blueprints, petitioner constitutes the means by which men throughout respondent’s system obtain the information they must have to maintain the railroad’s trains, equipment, track, and structures.\nThe very purpose of petitioner’s job is to further physical maintenance of an interstate railroad system. Proper performance of her duties makes an obvious contribution to the maintenance of that system. We hold that the petitioner, by the performance of her duties, is furthering the interstate transportation in which the respondent is engaged. “The word ‘furtherance’ is a comprehensive term. Its periphery may be vague, but admittedly it is both large and elastic.” Shelton v. Thomson, 148 F. 2d 1, 3. Petitioner’s duties here come within the confines of that concept.\nSimilarly, those duties which “in any way directly or closely and substantially affect” interstate commerce in the railroad industry must necessarily be marked out through the process of case-by-case adjudication. This definition and the “furtherance” definition of employment in interstate commerce in the 1939 amendment are set forth in the disjunctive. In some situations they may overlap. Here we hold that, for the reasons already given, performance of petitioner’s duties has a' close and substantial effect upon the operation of respondent’s interstate activities. Cf. Overstreet v. North Shore Corp., 318 U. S. 125.\n*508Petitioner’s duties brought her within the coverage of § 1 as amended, and the District Court therefore had jurisdiction over this suit under the Federal Employers’ Liability Act. The judgment below is reversed and the cause remanded to the District Court for further proceedings.\n\nReversed.\n\nMr. Justice Burton dissents for the reasons stated below in the opinion of the Court of Appeals.\n", "ocr": false, "opinion_id": 9421324 }, { "author_str": "Frankfurter", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Frankfurter,\nwhom Mr. Justice Reed and Mr. Justice Harlan join,\ndissenting.\nDissenters are not empowered to define the scope of a decision, but the way they read it may induce dissent. So it is with what the Court has here written. The opinion does not state in terms that the Amendment of August 11, 1939, 53 Stat. 1404, to the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. 65, has so drastically changed the limited scope of that Act to those employees of an interstate carrier who are, more or less, directly concerned with its transportation operations as to make it reach all the employees of such interstate carrier whom Congress in the exercise of its constitutional power to regulate commerce may cover. I say the Court does not explicitly hold this, but it does hold that a clerical employee is covered by the terms of the Act because a “part” of her duties is in “furtherance” of interstate commerce. The Court reads the Amendment of 1939 to the Act of 1908 in a merely lexicographical sense. “Furtherance” means anything that furthers or helps forward; the petitioner was certainly charged with tasks that furthered or helped to forward the business of the Pennsylvania Railroad Company, a carrier engaged in interstate commerce; ergo, the petitioner, having been injured while “employed by such carrier in such com*509merce,” has a right of action under the Amendment to the Employers’ Liability Act.\nWere the Court to be as explicit as this, it would at least not open the door, as this decision inevitably does, to new litigation. It is not a juristic requirement that decisions be carried to their logical consequences. It is equally true that capricious distinctions should not be made. Yet they are invited when the rationale of a decision is left, if not cloudy, certainly unlimited. For myself, I do not see how the clerical employee here “furthers” the business of the Pennsylvania any more than do all the other clerical employees of the Pennsylvania, and the thousands upon thousands of clerical employees on the various railroads throughout the country, even though there may be differences in salary and hierarchical importance among such employees.\nAccordingly, clerical employees and other obviously non-transportation employees of railroads will bring suits under the Federal Employers’ Liability Act when recovery thereunder will, by the law of chance, appear to lawyers advising them to be more advantageous than awards obtainable under state workmen’s compensation acts. Indeed, if some employees may seek to avail themselves, for one reason or another, of a state workmen’s compensation act, a carrier may resist, under the doctrine of New York Central R. Co. v. Winfield, 244 U. S. 147, by urging the exclusiveness of a remedy under the Federal Employers’ Liability Act. Conversely, if suit is brought under that Act, carriers will doubtless resist, as they have in the past, on the ground that the particular clerical employee is not “furthering” its business sufficiently to constitute “furtherance” as intended by the Court in this case. It is not a silly exercise in prophecy to foretell that just as a mass, if indeed not a mess, of cases came before this Court prior to the 1939 Amendment, when the Court gave a much too constricted scope to the Act (see cases *510collected in Frankfurter and Landis, The Business of the Supreme Court, pp. 207-208), so a new series of sterile litigation will be stimulated by this decision.\nI part company with the Court not in its reading of English but in its assumption that the construction of the Amendment to the Federal Employers’ Liability Act is merely a matter of reading English. The Act of August 11, 1939, is the last in a series of consistently developing statutes. As such, it is an organism, projected into the future out of its past. It is not merely a collection of words for abstract annotation out of the dictionary. The process of judicial construction must be mindful of the history of the legislation, of the purpose which infused it, of the difficulties which were encountered in effectuating this purpose, of the aims of those most active in relieving these difficulties. Above all, we should be mindful of the central concern of the body of enactments that constitute the Federal Employers’ Liability Act throughout all the vicissitudes of the legislation. It would be redundant to detail these considerations in view of Judge Goodrich’s opinion below. 227 F. 2d 810. A few additional observations are pertinent.\nOf course, the Act of 1939 sought to remove hindrances that had revealed themselves in subjecting carriers to liability for injuries due to negligence. But the preoccupation of the whole course of this legislation was with protection to those who were peculiarly exposed to injuries because of the nature of their occupation, i. e., the hazardous business of railroading. A very important obstacle to recovery was the doctrine of the assumption of risk as part of the general law of negligence that was made the basis of the federal right. Congress abolished assumption of risk as a defense. See Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54. Another great difficulty derived from this Court’s construction of the Commerce *511Clause whereby it confined application of the Federal Employers’ Liability Act to injuries sustained by an employee if at the moment of injury his work was related to interstate transportation. This mode of approach derived from the Employers’ Liability Cases, 207 U. S. 463, and the Second Employers’ Liability Cases, 223 U. S. 1, and produced a series of decisions which led Judge Learned Hand to say “The cases are full of casuistry Central R. Co. of New Jersey v. Monahan, 11 F. 2d 212, 213.\nI agree with the Court in finding that the “1939 amendment was designed to obliterate fine distinctions”; but they were made by courts only in relation to employees who worked in the context of the hazardous business of transportation. The amendatory legislation was addressed to judicial distinctions affecting these transportation workers that bore no practical relation to the essential conditions of their employment; these distinctions never touched others in a totally different category of employment because the Federal Employers’ Liability Act never remotely applied to them. In order to obliterate such “fine distinctions,” it is not necessary to jump over the moon and wipe out the basic distinction between those whose duties are tied to transportation, whatever may have been their precise work at the moment of injury, and those employees who are exposed by way of permanent occupation to no greater or different potential hazards than are the thousands upon thousands of like workers in offices other than those of railroads whom Congress has left to remedies under state law. It was on the presupposition of this cardinal distinction between transportation and non-transportation employees of railroads that the Federal Employers’ Liability Act was amended in 1939. To make it apply to clerical workers who “further,” in a dictionary sense of the term, the interstate *512commerce business of railroads would have as much justification, but no more, as it would have for Congress to pass a Federal Employers’ Liability Act for all employees who further large enterprises in the conduct of their interstate commerce. The whole course of history of the Federal Employers’ Liability Act as well as due regard for the text of the Amendment of 1939, in its entire context, calls for affirmance of the decision below.\n", "ocr": false, "opinion_id": 9421325 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/351/351.US.502.621.html", "author_id": 2270, "opinion_text": "\n351 U.S. 502 (1956)\nREED\nv.\nPENNSYLVANIA RAILROAD CO.\nNo. 621.\nSupreme Court of United States.\nArgued May 1, 1956.\nDecided June 11, 1956.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.\nJoseph S. Lord, III, argued the cause and filed a brief for petitioner.\nTheodore Voorhees argued the cause for respondent. With him on the brief were Philip Price and Gordon W. Gerber.\n*503 MR. JUSTICE MINTON delivered the opinion of the Court.\nThe question we have for decision here is whether petitioner, a clerical employee of respondent railroad, is within the coverage of the Federal Employers' Liability Act. § 1, 35 Stat. 65, as amended, 53 Stat. 1404, 45 U.S. C. § 51. Petitioner is employed entirely in respondent's office building in Philadelphia. Her duties consist of filing original tracings of all of respondent's engines, cars, parts, tracks, bridges, and other structures, from which blueprints of those items are made. There are some 325,000 tracings on file in the office in which petitioner works. Whenever an order for blueprints comes in from anywhere in respondent's system, it is petitioner's responsibility to fill the order by securing the correct tracings from the files. These she takes to the blueprint maker in the same office building. After the blueprints are made, it is petitioner's further duty to return the original tracings to the appropriate file. About 67% of the blueprints so made are sent to points outside pennsylvania. The files which petitioner attends are the sole depository of the original tracings of the structural details of all of respondent's rolling stock, trackage, and other equipment and installations, and as such represent a fund of documents without which maintenance of the operating system would be impossible.\nPetitioner was injured when a cracked window pane in her office blew in upon her. She brought suit for personal injury under the Federal Employers' Liability Act. On respondent's motion to dismiss, the District Court held that petitioner was not within the coverage of § 1 of the Act and, there being no diversity of citizenship between the parties, dismissed the complaint for lack of jurisdiction. The Court of Appeals affirmed. 227 F.2d 810.\n*504 We granted certiorari because of the importance of the question presented in the administration of the Act. 350 U.S. 965.\nAs originally enacted, § 1 provided that every railroad, \"while engaging\" in interstate commerce,\n\"shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.\" 35 Stat. 65.\nA further paragraph was added to the section in 1939, and it is clear that two specific problems which the amendment sought at least to remedy were the results of this Court's holdings that, at the moment of his injury, the employee as well as the railroad had to be engaged in interstate commerce in order to come within the coverage of § 1, and that employees engaged in construction of new facilities were not covered. S. Rep. No. 661, 76th Cong., 1st Sess. 2-3; Southern Pacific Co. v. Gileo, decided today, ante, p. 493. The amendment took the form of an expanded definition of \"person . . . employed\" in interstate commerce. The amendment reads:\n\"Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this Act, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this Act . . . .\" 53 Stat. 1404.\n*505 No argument is made that Congress could not constitutionally include petitioner within the coverage of the Act. The argument is that the amendment was narrowly drawn to remedy specific evils and that to construe it to include petitioner would amount to inclusion in the Act of virtually all railroad employees—a result which respondent assumes is unintended and undesirable. The argument takes several forms. First, it is said that \"commerce\" in the Act means only transportation and that petitioner is not employed in transportation. See Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556, 559-560. But the interstate commerce in which respondent is engaged is interstate transportation. If \"any part\" of petitioner's duties is in \"furtherance\" of or substantially affects interstate commerce, it also is in \"furtherance\" of or substantially affects interstate transportation. The test for coverage under the amendment is not whether the employee is engaged in transportation, but rather whether what he does in any way furthers or substantially affects transportation. Nor can we resolve the issue presented here in terms of whether or not clerical employees as a class are excluded from the benefits of the statute. The 1939 amendment was designed to obliterate fine distinctions as to coverage between employees who, for the purpose of this remedial legislation, should be treated alike. There is no meaningful distinction, in terms of whether the employee's duties are clerical or not, between petitioner and, for illustration, an assistant chief timekeeper, Straub v. Reading Co., 220 F.2d 177, or a messenger boy carrying waybills and grain orders between separate local offices and freight stations, Bowers v. Wabash R. Co., 246 S.W.2d 535, or a lumber inspector hurt while inspecting ties at a lumber company, Ericksen v. Southern Pacific Co., 39 Cal. 2d 374, 246 P.2d 642—all of whom have been held covered by the 1939 amendment. See also Lillie v. Thompson, 332 U.S. 459. Nor are the benefits of the *506 Act limited to those exposed to the special hazards of the railroad industry. The Act has not been so interpreted, and the 1939 amendment specifically affords protection to \"any employee\" whose duties bring him within that amendment. There is no basis in the language of § 1 for confining liability of the railroad so as to exclude any class of railroad employees as a class. The benefits of the Act are not limited to those who have cinders in their hair, soot on their faces, or callouses on their hands. Section I cannot be interpreted to exclude petitioner from its benefits without further consideration of the function she performs and its impact on interstate commerce.\nWe think that the present petitioner is employed by the respondent in interstate commerce within the meaning of the 1939 amendment to § 1. Although the amendment may have been prompted by a specific desire to obviate certain court-made rules limiting coverage, the language used goes far beyond that narrow objective. It evinces a purpose to expand coverage substantially as well as to avoid narrow distinctions in deciding questions of coverage. Under the amendment, it is the \"duties\" of the employee that must further or affect commerce, and it is enough if \"any part\" of those duties has the requisite effect. The statute commands us to examine the purpose and effect of the employee's function in the railroad's interstate operation, without limitation to nonclerical employees or determination on the basis of the employee's importance as an individual in the railroad's organization.\nHere respondent railroad has chosen to arrange its operations so that repairs and construction anywhere within its system which require blueprints must go through its Philadelphia office. No such work can be done without recourse to the files of 325,000 original tracings in petitioner's custody. Loss or misplacing of those tracings could promptly cause delay, confusion, or worse in the day-to-day operation of respondent's lines. If all employees *507 who perform petitioner's duties were removed from service, respondent could not conduct its operations without a change in its organizational system. To recognize this is to attribute to petitioner neither an exaggerated nor an attenuated relationship to respondent's transportation system. The filing of tracings and the dispatch of blueprints taken from them comprise a direct link in the maintenance of respondent's lines and rolling stock. Together with the makers of blueprints, petitioner constitutes the means by which men throughout respondent's system obtain the information they must have to maintain the railroad's trains, equipment, track, and structures.\nThe very purpose of petitioner's job is to further physical maintenance of an interstate railroad system. Proper performance of her duties makes an obvious contribution to the maintenance of that system. We hold that the petitioner, by the performance of her duties, is furthering the interstate transportation in which the respondent is engaged. \"The word `furtherance' is a comprehensive term. Its periphery may be vague, but admittedly it is both large and elastic.\" Shelton v. Thomson, 148 F.2d 1, 3. Petitioner's duties here come within the confines of that concept.\nSimilarly, those duties which \"in any way directly or closely and substantially affect\" interstate commerce in the railroad industry must necessarily be marked out through the process of case-by-case adjudication. This definition and the \"furtherance\" definition of employment in interstate commerce in the 1939 amendment are set forth in the disjunctive. In some situations they may overlap. Here we hold that, for the reasons already given, performance of petitioner's duties has a close and substantial effect upon the operation of respondent's interstate activities. Cf. Overstreet v. North Shore Corp., 318 U.S. 125.\n*508 Petitioner's duties brought her within the coverage of § 1 as amended, and the District Court therefore had jurisdiction over this suit under the Federal Employers' Liability Act. The judgment below is reversed and the cause remanded to the District Court for further proceedings.\nReversed.\nMR. JUSTICE BURTON dissents for the reasons stated below in the opinion of the Court of Appeals.\nMR. JUSTICE FRANKFURTER, whom MR. JUSTICE REED and MR. JUSTICE HARLAN join, dissenting.\nDissenters are not empowered to define the scope of a decision, but the way they read it may induce dissent. So it is with what the Court has here written. The opinion does not state in terms that the Amendment of August 11, 1939, 53 Stat. 1404, to the Federal Employers' Liability Act of April 22, 1908, 35 Stat. 65, has so drastically changed the limited scope of that Act to those employees of an interstate carrier who are, more or less, directly concerned with its transportation operations as to make it reach all the employees of such interstate carrier whom Congress in the exercise of its constitutional power to regulate commerce may cover. I say the Court does not explicitly hold this, but it does hold that a clerical employee is covered by the terms of the Act because a \"part\" of her duties is in \"furtherance\" of interstate commerce. The Court reads the Amendment of 1939 to the Act of 1908 in a merely lexicographical sense. \"Furtherance\" means anything that furthers or helps forward; the petitioner was certainly charged with tasks that furthered or helped to forward the business of the Pennsylvania Railroad Company, a carrier engaged in interstate commerce; ergo, the petitioner, having been injured while \"employed by such carrier in such commerce,\" *509 has a right of action under the Amendment to the Employers' Liability Act.\nWere the Court to be as explicit as this, it would at least not open the door, as this decision inevitably does, to new litigation. It is not a juristic requirement that decisions be carried to their logical consequences. It is equally true that capricious distinctions should not be made. Yet they are invited when the rationale of a decision is left, if not cloudy, certainly unlimited. For myself, I do not see how the clerical employee here \"furthers\" the business of the Pennsylvania any more than do all the other clerical employees of the Pennsylvania, and the thousands upon thousands of clerical employees on the various railroads throughout the country, even though there may be differences in salary and hierarchical importance among such employees.\nAccordingly, clerical employees and other obviously non-transportation employees of railroads will bring suits under the Federal Employers' Liability Act when recovery thereunder will, by the law of chance, appear to lawyers advising them to be more advantageous than awards obtainable under state workmen's compensation acts. Indeed, if some employees may seek to avail themselves, for one reason or another, of a state workmen's compensation act, a carrier may resist, under the doctrine of New York Central R. Co. v. Winfield, 244 U.S. 147 by urging the exclusiveness of a remedy under the Federal Employers' Liability Act. Conversely, if suit is brought under that Act, carriers will doubtless resist, as they have in the past, on the ground that the particular clerical employee is not \"furthering\" its business sufficiently to constitute \"furtherance\" as intended by the Court in this case. It is not a silly exercise in prophecy to foretell that just as a mass, if indeed not a mess, of cases came before this Court prior to the 1939 Amendment, when the Court gave a much too constricted scope to the Act (see cases *510 collected in Frankfurter and Landis, The Business of the Supreme Court, pp. 207-208), so a new series of sterile litigation will be stimulated by this decision.\nI part company with the Court not in its reading of English but in its assumption that the construction of the Amendment to the Federal Employers' Liability Act is merely a matter of reading English. The Act of August 11, 1939, is the last in a series of consistently developing statutes. As such, it is an organism, projected into the future out of its past. It is not merely a collection of words for abstract annotation out of the dictionary. The process of judicial construction must be mindful of the history of the legislation, of the purpose which infused it, of the difficulties which were encountered in effectuating this purpose, of the aims of those most active in relieving these difficulties. Above all, we should be mindful of the central concern of the body of enactments that constitute the Federal Employers' Liability Act throughout all the vicissitudes of the legislation. It would be redundant to detail these considerations in view of Judge Goodrich's opinion below. 227 F.2d 810. A few additional observations are pertinent.\nOf course, the Act of 1939 sought to remove hindrances that had revealed themselves in subjecting carriers to liability for injuries due to negligence. But the preoccupation of the whole course of this legislation was with protection to those who were peculiarly exposed to injuries because of the nature of their occupation, i. e., the hazardous business of railroading. A very important obstacle to recovery was the doctrine of the assumption of risk as part of the general law of negligence that was made the basis of the federal right. Congress abolished assumption of risk as a defense. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54. Another great difficulty derived from this Court's construction of the Commerce *511 Clause whereby it confined application of the Federal Employers' Liability Act to injuries sustained by an employee if at the moment of injury his work was related to interstate transportation. This mode of approach derived from the Employers' Liability Cases, 207 U.S. 463, and the Second Employers' Liability Cases, 223 U.S. 1, and produced a series of decisions which led Judge Learned Hand to say \"The cases are full of casuistry . . . .\" Central R. Co. of New Jersey v. Monahan, 11 F.2d 212, 213.\nI agree with the Court in finding that the \"1939 amendment was designed to obliterate fine distinctions\"; but they were made by courts only in relation to employees who worked in the context of the hazardous business of transportation. The amendatory legislation was addressed to judicial distinctions affecting these transportation workers that bore no practical relation to the essential conditions of their employment; these distinctions never touched others in a totally different category of employment because the Federal Employers' Liability Act never remotely applied to them. In order to obliterate such \"fine distinctions.\" it is not necessary to jump over the moon and wipe out the basic distinction between those whose duties are tied to transportation, whatever may have been their precise work at the moment of injury, and those employees who are exposed by way of permanent occupation to no greater or different potential hazards than are the thousands upon thousands of like workers in offices other than those of railroads whom Congress has left to remedies under state law. It was on the presupposition of this cardinal distinction between transportation and non-transportation employees of railroads that the Federal Employers' Liability Act was amended in 1939. To make it apply to clerical workers who \"further,\" in a dictionary sense of the term, the interstate *512 commerce business of railroads would have as much justification, but no more, as it would have for Congress to pass a Federal Employers' Liability Act for all employees who further large enterprises in the conduct of their interstate commerce. The whole course of history of the Federal Employers' Liability Act as well as due regard for the text of the Amendment of 1939, in its entire context, calls for affirmance of the decision below.\n", "ocr": false, "opinion_id": 105415 } ]

[ "461 F.3d 614" ]

[ { "author_str": "Wiener", "per_curiam": false, "type": "010combined", "page_count": 41, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\03/03-60700-CV0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n REVISED SEPTEMBER 15, 2006\n August 22, 2006\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT Charles R. Fulbruge III\n Clerk\n\n\n No. 03-60700\n\n\n\nSUCCESSION OF CHARLES T. McCORD, JR., Deceased,\nCHARLES T. McCORD III and MICHAEL S. McCORD,\nEXECUTORS; MARY S. McCORD, Donors,\n\n Petitioners-Appellants,\n\nversus\n\nCOMMISSIONER OF INTERNAL REVENUE,\n\n Respondent-Appellee.\n\n --------------------\n Appeals from the United States Tax Court\n (7048-00)\n --------------------\n\nBefore GARWOOD, WIENER, and DeMOSS, Circuit Judges.\n\nWIENER, Circuit Judge.\n\n This is an appeal from an adverse opinion and judgment of an\n\n8-judge majority (the “Majority”) of a splintered United States Tax\n\nCourt.1 The Petitioners-Appellants (the “Taxpayers”)2 seek reversal\n\n 1\n McCord v. Commissioner, 120 T.C. 358 (2003) (Halpern, J.,\njoined by Wells, Cohen, Swift, Gerber, Colvin, Gale, and\nThornton, JJ. Separate opinions were filed by (1) Swift, J.,\nconcurring, (2) Chiechi, J., joined by Foley, J., concurring in\npart and dissenting in part, (3) Foley, J., joined by Chiechi,\nJ., concurring in part and dissenting in part, and (4) Laro, J.,\njoined by Vasquez, J., dissenting.)\n 2\n Charles T. McCord, Jr., and Mary S. McCord were husband\nand wife. Mr. McCord died in August, 2001, while this matter was\npending in the Tax Court, and his Succession, represented by two\nof the Taxpayers’ four sons as testamentary co-executors, was\n\fof the Majority’s holdings, which the Taxpayers accurately\n\ncharacterize as:\n\n (1) The aggregate fair market value of the\n Taxpayers’ donated interests in a family limited\n partnership, McCord Interests, Ltd., L.L.P. (“MIL”) was\n $9,883,832 instead of the substantially lesser value of\n $7,369,215 claimed by the Taxpayers on their returns.\n\n (2) The Taxpayers’ charitable deductions under\n § 2522 of the Internal Revenue Code of 1986 (“I.R.C.”)\n for gifts to one of two tax-exempt organizations\n (collectively, “exempt donees”) must be calculated not on\n the basis of the plain language of the act of gift\n (“Assignment Agreement”) of January 12, 1996, but on the\n Tax Court’s own gloss thereon and its determination of\n the various percentage interests in MIL that —— two\n months after the gifts —— were agreed on and accepted by\n all donees (but not by Taxpayers) in a post-gift sharing\n arrangement (the “Confirmation Agreement”) entered into\n in March of 1996.\n\n (3) The taxable value of the gifts made by the\n Taxpayers to (a) their four sons individually (“the\n Sons”) and (b) generation skipping tax trusts (“GST\n trusts”) of which the Sons were trustees (collectively,\n “the non-exempt donees”) must be calculated not only on\n the basis of the Tax Court’s independently determined\n fair market value and the percentage interests in MIL of\n the residuary exempt donee, but also without a reduction\n in fair market value of the gifts to the non-exempt\n donees for the actuarially determined liability, assumed\n by such donees contemporaneously with the gifts, for any\n additional estate taxes that might be incurred under §\n 2035 (and, in the case of Mr. McCord, that were incurred)\n if either or both of the Taxpayers should die within\n three years following the date of the gifts3 —— death\n within that post-gift period being a condition subsequent\n\n\nsubstituted for the decedent as a petitioner-appellant.\n 3\n Such potential § 2035 estate tax liability was expressly\nassumed pro rata by the non-exempt donees as conditions to their\nentitlement to the subject gifts. None disputes that the taxable\nvalues of the gifts made to the non-exempt donees were properly\nreduced by the gift taxes incurred by the Taxpayers,\nresponsibility for which also was assumed by these donees.\n\n 2\n\f that would terminate the donors’ (and thus the non-exempt\n donees’) present obligations to pay any and all eventual\n § 2035 estate taxes.\n\n For the reasons explained below, we reverse the Tax Court and\n\nremand this case to it with instructions to enter judgment for the\n\nTaxpayers consistent with this opinion.\n\n I. FACTS & PROCEEDINGS\n\nA. Background\n\n With the exception of the ultimate fact question of the\n\ntaxable and deductible values of the limited partnership interests\n\nin MIL that comprise the completed, irrevocable inter vivos\n\ndonations (the “gifts”) made by the Taxpayers to the exempt and\n\nnon-exempt donees on January 12, 1996, the discrete facts framing\n\nthis case are largely stipulated or otherwise undisputed. Having\n\nlived in Shreveport, Louisiana for most of their adult lives, and\n\nhaving accumulated substantial and diversified assets, these\n\noctogenarian Taxpayers embarked on a course of comprehensive family\n\nwealth preservation and philanthropic support planning, including\n\ntransfer tax aspects of implementing such a plan. This was done in\n\nconsultation with Houston-based specialists in that field.\n\n Effective June 30, 1995, the Taxpayers had joined with the\n\nSons and an existing ordinary partnership (“McCord Bros.” formed\n\nand owned equally by the Sons) to create MIL, a Texas limited\n\npartnership. In creating MIL, (1) each Taxpayer had contributed\n\n$10,000 for which each had received one-half of the Class A limited\n\n\n\n 3\n\fpartnership interest in MIL; (2) each Son had contributed $40,000\n\nfor which he had received one-fourth of the general partnership\n\ninterest in MIL; (3) each Taxpayer had contributed identical\n\ninterests in substantial business and investment assets (valued at\n\n$6,147,192 per Taxpayer) for which each Taxpayer had received equal\n\nportions (but less than all) of the Class B limited partnership\n\ninterest in MIL, representing in the aggregate just over 82 per\n\ncent of the value of that partnership; and (4) McCord Bros. had\n\ncontributed interests in similar business and investment assets\n\n(valued at $2,478,000), for which it had received the remaining\n\nClass B limited partnership interest in MIL, representing roughly\n\n16.6 per cent of the value of that partnership.4 As a result, MIL\n\nwas initially owned as follows:\n\n Class and Contributor Contribution Percentage\n Interest\nClass A limited partners:\n Mr. McCord $ 10,000 ––\n Mrs. McCord 10,000 ––\n\n\n\n\n 4\n The Taxpayers’ contributions to MIL for their Class A\nlimited partnership interests and the Sons’ contributions for\ntheir general partnership interests were made in cash. The\nvalues of the in-kind interests in business and investment assets\ncontributed to MIL in exchange for Class B limited partnership\ninterest were based on appraisals by William H. Frazier, a\nprincipal in the Houston-based valuation and consulting firm of\nHoward, Frazier, Barker, Elliott, Inc. Mr. Frazier’s testimony\nwas submitted in the trial of this case as an expert witness on\nbehalf of the Taxpayers.\n\n 4\n\fGeneral partners:\n Charles III 40,000 0.26787417\n Michael 40,000 0.26787417\n Frederick 40,000 0.26787417\n Stephen 40,000 0.26787417\nClass B limited partners:\n Mr. McCord 6,147,192 41.16684918\n Mrs. McCord 6,147,192 41.16684918\n McCord Brothers 2,478,000 16.59480496\nTotal $14,952,384 100.0\n\n\n As found by the Majority, MIL’s partnership agreement (the\n\n“Partnership Agreement”) provides, inter alia:\n\n\n MIL will continue in existence until\n December 31, 2025 (the termination date),\n unless sooner terminated in accordance with\n applicable terms of the partnership agreement.\n\n Any class B limited partner may withdraw\n from MIL prior to its termination date and\n receive payment equal to the fair market value\n (as determined under the partnership\n agreement) of such partner’s class B limited\n partnership interest (the put right).\n\n Partners may freely assign their\n partnership interests to or for the benefit of\n certain family members and charitable\n organizations (permitted assignee).\n\n A partner desiring to assign his interest\n to someone other than a permitted assignee\n must first offer that interest to MIL and all\n other partners and assignees, who have the\n right to purchase such interest at fair market\n value (as determined under the Partnership\n agreement).\n\n The term “partnership interest” means the\n interest in the partnership representing any\n partner’s right to receive distributions from\n\n\n\n 5\n\f the partnership and to receive allocations of\n partnership profit and loss.\n\n Regardless of the identity of the\n assignee, no assignee of a partnership\n interest can attain the legal status of\n partner in MIL without the unanimous consent\n of all MIL partners.\n\n MIL may purchase the interest of any\n [exempt donee] (i.e., a permitted assignee of\n a partnership interest that is a charitable\n organization that has not been admitted as a\n partner of MIL) at any time for fair market\n value, as determined under the partnership\n agreement (the call right).\n\n For purposes of the partnership\n agreement, (1) a class B limited partner’s put\n right is disregarded for purposes of\n determining the fair market value of such\n partner’s class B limited partnership\n interest, and (2) any dispute with respect to\n the fair market value of any interest in MIL\n is to be resolved by arbitration as provided\n in Exhibit G attached to the partnership\n agreement.\n\n Limited partners generally do not\n participate in the management of the\n partnership’s affairs. However, limited\n partners do have veto power with respect to\n certain “major decisions”, most notably\n relating to voluntary bankruptcy filings.5 In\n addition, if any two of the [Sons] are not\n serving as managing partners, class B limited\n partners have voting rights with respect to\n certain “large dollar” managerial decisions.\n Limited partners also have access to certain\n partnership financial information.6\n\n\n\n\n 5\n A class A limited partnership interest does not carry with\nit a “Percentage Interest” in MIL (as that term is defined in the\nPartnership Agreement).\n 6\n McCord, 120 T.C. at 362-63.\n\n 6\n\f MIL’s partnership agreement was amended and restated in\n\nOctober 1995, prospectively effective November 1, 1995. Twenty\n\ndays after the effective date of this act, Taxpayers, as owners of\n\nall Class A limited partnership interests in MIL, donated these\n\ninterests to The Southfield School Foundation (the “Foundation”),\n\na § 501(c)(3) tax exempt organization. All original MIL partners\n\n—— general, Class A limited, and Class B limited —— executed an\n\nAssignment of Partnership Interests and Addendum Agreement (the\n\n“Southfield Agreement”) to implement this gift. The Southfield\n\nAgreement declares that “all of the partners of [MIL] desire that\n\n[the Foundation] become a Class A limited partner of [MIL] upon\n\nexecution of this assignment of partnership interest” and that “all\n\nconsents required to effect the conveyance of the Assigned\n\nPartnership Interest and the admission of assignee as a Class A\n\nlimited partner of [MIL] have been duly obtained and/or evidenced\n\nby the signatures hereto.” After executing the Southfield\n\nAgreement, the Taxpayers were left with only their Class B limited\n\npartnership interests in MIL. (The donation to the Foundation is\n\nnot at issue in this litigation; we discuss it only to note\n\ndifferences in its details from those of the Assignment Agreement,\n\nwhich was used to effectuate the Taxpayers’ below-discussed\n\ndonations of Class B interests in MIL to the exempt and non-exempt\n\ndonees.)\n\n On January 12, 1996, through a combination of simultaneous\n\ntaxable gifts to the non-exempt donees and charitable-deduction\n\n 7\n\fgifts to the exempt donees, the Taxpayers irrevocably disposed of\n\nall their Class B limited partnership interests in MIL, retaining\n\nno interest whatsoever in the Partnership. They did this by\n\njoining with all non-exempt donees and two new exempt donees,\n\nnamely, the Community Foundation of Texas, Inc. (“CFT”), and the\n\nShreveport Symphony, Inc. (the “Symphony”), in the execution of the\n\nAssignment Agreement. In it, the Taxpayers transferred all of\n\ntheir Class B limited partnership interests in MIL to the exempt\n\nand non-exempt donees in varying portions, expressly relinquishing\n\nall dominion and control over the partnership interests thus\n\nassigned and transferred. The Assignment Agreement differs from\n\nthe Southfield Agreement in that (1) it does not contain parallel\n\nlanguage admitting the new donees as partners, and (2) two of the\n\nlimited partners of MIL —— McCord Bros. and the Foundation —— did\n\nnot join in the execution of the Assignment Agreement in any\n\ncapacity.\n\n At the heart of this case lies the question of the value of\n\nthe Class B limited partnership interests in MIL thus transferred\n\nby the Taxpayers to the exempt and non-exempt donees via the\n\nAssignment Agreement of January 12, 1996. We have observed that\n\nthese gifts divested the Taxpayers of their entire interest in MIL\n\nthen remaining. It did so, however, not in percentages of interest\n\nin MIL, however, but in dollar amounts of the net fair market value\n\nof MIL, according to a sequentially structured “defined value\n\nclause”:\n\n 8\n\f DONEE GIFT\n1. First, to the Generation A dollar amount of fair market\n Skipping Tax Trusts (“GST value in interest of MIL equal\n trusts”) to the dollar amount of\n Taxpayers’ net remaining\n generation skipping tax\n exemption, reduced by the\n dollar value of any transfer\n tax obligation owed by these\n trusts by virtue of their\n assumption thereof.\n2. Second, to the Sons $6,910,932.52 worth of fair\n market value in interest of\n MIL, reduced by the dollar\n value of (1) the interests in\n MIL given to the GST trusts,\n and (2) any transfer tax\n obligation owed by the Sons by\n virtue of their assumption\n thereof.\n3. Third, to the Symphony $134,000.00 worth of such in\n interest of MIL.7\n4. Last, to CFT The dollar amount of the\n interests of the Taxpayers in\n MIL, if any, that remained\n after satisfying the gifts to\n the GST trusts, the Sons, and\n the Symphony.\n\n All gifts were complete on execution of the Assignment\n\nAgreement on January 12, 1996. No other agreements —— written or\n\noral, express or implied —— were found to have existed between the\n\nTaxpayers and (1) the Sons, (2) the GST trusts, (3) the Symphony,\n\nor (4) CFT, as to what putative percentage interest in MIL belonged\n\n\n\n 7\n $7,044,932.52 less $6,910,932.52; but only if the full\ndifference of $134,000 remained; otherwise, any actual, lesser\namount remaining after satisfying the gifts to the GST trusts and\nthe Sons.\n\n 9\n\fto, or might eventually be received by, any of the donees under the\n\ndollar-value formula clause. Rather, because the interests donated\n\nby the Taxpayers to the GST trusts, the Sons, and the Symphony were\n\nexpressed in dollars, “fair market value” is defined in the\n\nAssignment Agreement in terms of the applicable “willing-\n\nbuyer/willing-seller” test specified in the applicable Treasury\n\nRegulation.8\n\n As reflected in the allocation provisions of the Assignment\n\nAgreement, the Taxpayers conditioned their gifts to the non-exempt\n\ndonees on the presently binding assumption by those donees of\n\nresponsibility for payment of any and all federal and state gift\n\ntaxes resulting from the taxable gifts of January 12, 1996. In\n\naddition, those donees assumed responsibility for the future\n\npayment of only those federal estate taxes that would be assessed\n\non the amount of Taxpayers’ gift taxes pursuant to § 2035, unless\n\nthe condition subsequent expressed in that section should occur,\n\ni.e., unless the Taxpayer in question should survive for three\n\nyears following the completion of the gift.9\n\n On February 28, 1996, Mr. Frazier completed his appraisal of\n\nthe various classes of partnership interest in MIL as of the\n\nJanuary 12, 1996 date of the gifts. He determined that the value\n\n 8\n Treas. Reg. § 25.2512-1\n 9\n § 2035(b) specified that if a taxpayer were to die within\nthree years following the date of the gifts, an amount equal to\nthe gift taxes paid on such gifts would be deemed included in his\nor her gross estates and subjected to federal estate tax.\n\n 10\n\fon that date had been $89,505 for each one per cent (1%) of Class\n\nB limited partnership interest in the hands of a donee immediately\n\nfollowing completion of the gifts.\n\n In March 1996, all donees entered into the Confirmation\n\nAgreement, based on that appraisal. In essence, the Confirmation\n\nAgreement translated the dollar value of each gift made under the\n\nAssignment Agreement’s defined value formula into percentages of\n\ninterest in MIL, as follows:\n\n 1. GST trusts 8.24977954% each\n\n 2. The Sons 11.05342285% each\n\n 3. The Symphony 1.49712307%\n\n 4. CFT 3.62376573%\n\n Total 82.33369836%\n\n The Taxpayers, who two months earlier had divested themselves\n\nof all interest in MIL, were not parties to the Confirmation\n\nAgreement or otherwise involved in it. Neither did the Assignment\n\nAgreement “call for,” i.e., either expressly or impliedly, specify\n\nany method or manner that the donees must or were expected to\n\nemploy in determining how to equate their respective dollar-amount\n\ngifts to percentages of interest in MIL.10 Moreover, each donee was\n\nrepresented by independent counsel and each had the express right\n\n\n 10\n The Commissioner’s appellate brief uses the term “called\nfor” in reference to the post-gift acts of the donees under the\nConfirmation Agreement, as though the Assignment Agreement\nrequired these acts. It does no such thing; it leaves\neverything post-gift to the independent discretion of each donee.\n\n 11\n\fto review the Frazier appraisal before entering into the\n\nConfirmation Agreement. In addition, any exempt donee that might\n\nquestion or disagree with the Frazier appraisal had the right to\n\nretain its own appraiser and, if still dissatisfied, to resolve\n\nquestions of value and allocation of interests in MIL through\n\nbinding arbitration.\n\n CFT elected to retain outside counsel who, in consultation\n\nwith CFT’s president and its director of development (both of whom\n\nwere lawyers with extensive experience in reviewing appraisals of\n\nclosely-held interests), independently analyzed the Frazier\n\nappraisal in light of the then-current circumstances. CFT\n\nsubsequently accepted the Frazier appraisal. Although CFT did not\n\nretain an independent appraiser, its officers and outside counsel\n\nexpressed confidence in Mr. Frazier and his firm, found his\n\nmethodology appropriate, and concluded that the value of CFT’s\n\npercentage interest in MIL proposed in the Confirmation Agreement\n\nwas an acceptable reflection of the dollar value of the interest in\n\nMIL that CFT had received from the Taxpayers in January. Neither\n\nthe Majority Opinion nor any of the four other opinions filed in\n\nthe Tax Court found evidence of any agreement —— not so much as an\n\nimplicit, “wink-wink” understanding —— between the Taxpayers and\n\nany of the donees to the effect that any exempt donee was expected\n\nto, or in fact would, accept a percentage interest in MIL with a\n\n\n\n\n 12\n\fvalue less than the full dollar amount that the Taxpayers had given\n\nto such a donee two months earlier.11\n\n Late in June of 1996, approximately three months after all\n\ndonees had entered into the Confirmation Agreement, MIL exercised\n\nits “call right” under the Assignment Agreement to redeem the\n\nexempt donees’ interests in MIL. Even though only months had\n\nelapsed since the January gifts had been appraised, MIL contracted\n\nwith Mr. Frazier to update his original appraisal as of June 29,\n\n1996, to determine the then-current fair market value of the\n\ninterests to be redeemed. After that updated appraisal was\n\ncompleted, MIL, the Symphony, and CFT reviewed it and agreed to\n\naccept its figure of $93,540 as the fair market value of each one\n\nper cent interest in MIL to be redeemed. This in turn produced\n\nslightly increased redemption prices of $140,041 for the Symphony’s\n\n1.497 per cent interest (originally $134,000) and $338,967 for\n\nCFT’s 3.624 per cent interest (originally $324,283). None of the\n\nopinions filed in this case contends that the Taxpayers had\n\nanything at all to do with MIL’s exercise of the call right or with\n\n\n\n\n 11\n The lone exception is a gratuitous generalization in a\nfootnote of the Majority opinion, in reference to the\nConfirmation Agreement, to which the Taxpayers were not parties.\nMcCord, 120 T.C. at 373 n.9 (stating that “it is against the\neconomic interest of a charitable organization to look a gift\nhorse in the mouth.”).\n\n 13\n\fthe redemption prices paid by MIL to the Symphony and CFT for these\n\ninterests.12\n\nB. Taxation of 1996 Gifts\n\n In 1997, the Taxpayers timely filed federal gift tax returns\n\nfor calendar year 1996, reflecting the aggregate values of their\n\nJanuary 12, 1996 gifts as $2,475,896.40 and $2,482,604.84,\n\nrespectively. These taxable values (before adjustment for annual\n\nexclusions of $60,000 per Taxpayer and charitable contribution\n\ndeductions of $209,173 per Taxpayer) were determined on the basis\n\nof the Frazier appraisal for that date, in which the gross fair\n\nmarket value of the respective gifts were reduced by, among other\n\nthings, (1) total federal gift taxes payable by the Taxpayers on\n\ntheir gifts to the non-exempt donees, payment of which was assumed\n\nby these donees, and (2) the actuarially determined present value\n\nof the non-exempt donees’ contractually assumed liability for the\n\nadditional estate taxes that would be incurred pursuant to the\n\ncurrent version of § 2035 and the date-of-gift estate tax rates,\n\nshould the triggering condition subsequent of the subject Tax Code\n\nprovision occur, i.e., should either or both of the Taxpayers fail\n\nto survive for three years after January 12, 1996.13\n\n 12\n See id. at 365 n.2 (“[P]etitioners were not involved in\nthe allocation of the gifted interest among the assignees\npursuant to the Confirmation Agreement.”).\n 13\n On their gift tax returns, the Taxpayers claimed annual\nexclusions totaling $60,000 on gifts to non-charitable donees and\ncharitable deductions on gifts to the charitable donees in the\namount of $209,173, reducing their respective amounts of taxable\n\n 14\n\fC. Deficiency\n\n The Commissioner of Internal Revenue (the “Commissioner”)\n\nissued deficiency notices on Taxpayers’ 1996 gift taxes in amounts\n\nof $2,053,525 and $2,047,903, respectively. These amounts resulted\n\nfrom the Commissioner’s proposed increases in the values of taxable\n\ngifts for 1996 of $3,740,904 and $3,730,439, respectively. The\n\nCommissioner based these asserted increases on his contentions that\n\nthe Taxpayers had (1) understated the fair market value of the\n\ndonated interests in MIL, and (2) erred in discounting the fair\n\nmarket value of those interests by the mortality-based, actuarially\n\ncalculated present value of the non-exempt donees’ assumed\n\nobligations for additional estate taxes under § 2035. The\n\nCommissioner’s fair market value of a one-percent interest in MIL\n\nwas $171,749, almost double the Taxpayers’ one-percent figure of\n\n$89,505.\n\nD. Proceedings\n\n Shortly after these notices of deficiency were issued, the\n\nTaxpayers filed a petition in the Tax Court contesting the\n\nCommissioner’s proposed deficiencies. The case was tried several\n\nmonths later before Judge Maurice B. Foley, largely on a joint\n\nstipulation of facts filed on the day of trial. The principal\n\ncontested matters were those raised by the Commissioner in his\n\ndeficiency notices: (1) the values of the Taxpayers’ interest in\n\n\n\ngifts to $2,206,724 and $2,213,432.\n\n 15\n\fMIL given under the dollar-value formula clause to the exempt and\n\nnon-exempt donees on January 12, 1996, and (2) the propriety of\n\ndiscounting the gross fair market value of the gifts to the non-\n\nexempt donees on the basis of the actuarially determined negative\n\npresent value of these donees’ assumed liability for additional\n\nestate taxes of the Taxpayer or Taxpayers who might die within\n\nthree years following the gifts. In their joint stipulations, the\n\nparties agreed that the Commissioner had the burden of proof\n\npursuant to § 7491. The Majority expressly accepted that\n\nevidentiary standard.14\n\n In the trial before Judge Foley, the main thrust of the\n\nCommissioner’s attack was grounded in the equitable doctrines of\n\nform-over-substance and violation-of-public-policy. The\n\nCommissioner did not advance an argument about the way that the\n\nAssignment Agreement should be interpreted or about the role of the\n\nConfirmation Agreement, if any, in determining fair market value.\n\nRather, he asked the court to disregard the plain wording of the\n\nAssignment Agreement, as well as the undisputed facts of the\n\nrelationships among the parties and their actions vis-à-vis one\n\nanother —— actions both taken and not taken —— and to decide the\n\ncase on one or both of these doctrinaire principles.15 Judge Foley\n\n 14\n McCord, 120 T.C. at 369; see also U.S.T.C. R. Prac. & P.\n142(a)(1)-(2).\n 15\n It appears that the Commissioner also referenced the\ndoctrine of reasonable-probability-of-receipt in a brief to the\nTax Court, but he did not pursue or rely on it there or here.\n\n 16\n\fdetermined the outcome of the case on the stipulated evidentiary\n\nstandard, holding that the Commissioner had failed to meet his\n\nburden of proof on any contested issue of fact or law and therefore\n\ncould not prevail.\n\n Approximately two years after that trial, the Acting Chief\n\nJudge of the Tax Court issued an unusual order that resulted in a\n\nproceeding that resembles an en banc rehearing. In essence, the\n\ncase was taken away from Judge Foley retroactively and reassigned\n\nto Judge James S. Halpern who, on the same day, filed an opinion on\n\nbehalf of the Majority. He was joined by seven other Tax Court\n\njudges, including the Acting Chief Judge. The Majority disagreed\n\nwith Judge Foley’s original opinion, which had turned on the\n\nCommissioner’s failure to meet his burden of proof, and held\n\ninstead for the Commissioner.\n\n The Majority’s holdings for the Commissioner were not,\n\nhowever, based on any of the overarching equitable doctrines that\n\nthe Commissioner had advanced at trial. Instead, the Majority\n\ncrafted its own interpretation of the Assignment Agreement and gave\n\ncontrolling effect to the post-gift Confirmation Agreement, all\n\nbased entirely on a theory that the Commissioner had never\n\nespoused. At the core of the novel methodology thus conceived and\n\nimplemented, sua sponte, by the Majority is the consistently\n\nrejected concept of postponed determination of the taxable value of\n\na completed gift —— postponed here until, two months after the\n\nTaxpayers gifts were completed, the donees decided among themselves\n\n 17\n\f(with neither actual nor implied participation of or suasion by the\n\ndonors) how they would equate the dollars-worth of interest in MIL\n\ngiven to them on January 12, 1996, with percentages of interests in\n\nMIL decided two months later by the donees in the Confirmation\n\nAgreement. Stated differently, the Majority in essence suspended\n\nthe valuation date of the property that the Taxpayers donated in\n\nJanuary until the date in March on which the disparate donees\n\nacted, post hoc, to agree among themselves on the Class B limited\n\npartnership percentages that each would accept as equivalents of\n\nthe dollar values irrevocably and unconditionally given by the\n\nTaxpayers months earlier. As shall be seen, we hold that the\n\nMajority’s unique methodology violated the immutable maxim that\n\npost-gift occurrences do not affect, and may not be considered in,\n\nthe appraisal and valuation processes.\n\n The Taxpayers timely filed their notice of appeal.\n\n II. ANALYSIS\n\nA. Standard of Review\n\n The complex appellate review required in this gift tax case\n\nimplicates (1) the interpretation and effect of contractual\n\nagreements, (2) the nature of property interests transferred by\n\ngift, (3) determination of the fair market value of such interests,\n\nand (4) special law rules governing that kind of evaluation\n\nexercise, including the types and percentages of discounts that may\n\nbe applied. Thus, our standard of review here cannot be covered\n\n\n\n 18\n\fadequately by rotely reciting the ubiquitous single-sentence mantra\n\nthat “we review factual determinations for clear error and legal\n\ndeterminations de novo.” The particularized standard of review\n\napplicable in this case is accurately stated in the Taxpayers’\n\nappellate brief:\n\n An appellate court reviews a trial court’s\n conclusions of law de novo and draws its own conclusions\n in place of those of the trial court. See American Home\n Assurance Co. v. Unitramp Ltd., 146 F.3d 311, 313 (5th\n Cir. 1998); Estate of Dunn v. Commissioner, 301 F.3d 339,\n 348 (5th Cir. 2002). Where a question of fact, such as\n valuation, requires legal conclusions, this Court reviews\n those underlying legal conclusions de novo. See Adams v.\n United States, 218 F.3d 383, 386 (5th Cir. 2000). The\n determination of the nature of the property rights\n transferred is a question of state law that this Court\n reviews de novo. Id. (holding valuation subject to de\n novo review because “to arrive at a reasonable conclusion\n regarding the value of the [transferred] property . . . ,\n one must first determine the rights afforded to the owner\n [recipient] of such property by the applicable state\n law”). The [Majority Opinion’s] failure to properly\n define the nature of the property rights transferred\n under the fixed-value formula in the Assignment Agreement\n and its [rejection of the Taxpayers’ reduction of] the\n value of the interests transferred by the value of the\n [non-exempt] donees’ contractual obligation to pay estate\n tax liability are questions of law subject to de novo\n review by this Court. Id. (“Inasmuch as the trial\n court’s ultimate finding here is predicated on a legal\n conclusion regarding the rights inherent in the property,\n its valuation is subject to de novo review.”). If this\n Court ignores the Assignment Agreement and determines\n that the interest to be valued are those set forth in the\n Confirmation Agreement,16 the Tax Court’s factual\n findings in the determination of the fair market value of\n the interests transferred are reviewed for clear error.\n See McInvale v. Commissioner, 936 F.2d 833, 836 (5th Cir.\n 1991).\n\n\n\n 16\n Emphasis ours.\n\n 19\n\fB. Burden of Proof\n\n As we noted above, the parties stipulated (and the Tax Court\n\naccepted for purposes of this case) that, pursuant to § 7491, the\n\nCommissioner had the burden of proof. We review this case on\n\nappeal accordingly.\n\nC. Merits\n\n 1. Commissioner’s Theory on Appeal.\n\n At the outset, we reiterate that, although the Commissioner\n\nrelied on several theories before the Tax Court, including\n\ndoctrines of form-over-substance, violation-of-public policy, and,\n\npossibly, reasonable-probability-of-receipt, he has not advanced\n\nany of those theories on appeal. Accordingly, the Commissioner has\n\nwaived them,17 and has instead —— not surprisingly —— devoted his\n\nefforts on appeal solely to supporting the methodology and holdings\n\nof the Majority, as succinctly summarized in the Taxpayers’\n\nappellate brief:\n\n [t]he Majority held that (1) the interests transferred\n [by the Assignment Agreement of January 12, 1996] were\n assignee interests in [MIL]; (2) the Majority was not\n required to follow the terms of the Assignment Agreement\n in determining the fair market value of the interests in\n the partnership transferred by [the Taxpayers]; (3) the\n fair market value of the total interests transferred was\n $9,883,832, or $120,046 per 1% interest; (4) the value of\n\n 17\n See Webb v. Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th\nCir. 1996)(holding that a party who fails to raise an issue in\nits brief waives the right to appellate review of that issue);\nsee also Fed.R.App.P. 28(a)(9)(A) (stating that appellant’s brief\nmust contain “appellant’s contentions and the reasons for them,\nwith citations to the authorities and parts of the record on\nwhich the appellant relies”).\n\n 20\n\f the interests transferred should be based on the value\n determined by the Majority on a per unit basis times the\n percentage interests determined by the donees in a\n Confirmation Agreement reached by the donees two months\n after the gifts were made; and (5) the value of the [non-\n exempt] donees’ contractual obligation to pay estate tax\n liability [under § 2035] could not be deducted in\n determining the value of [the Taxpayers’] gift.18\n\nWe address each of these holdings, albeit in a different sequence.\n\n 2. Nature of Rights Assigned\n\n We gather that, in arguing at trial that some of the discounts\n\nemployed by the Taxpayers’ expert in valuing the interests donated\n\nwere erroneous or inapplicable, the Commissioner specifically\n\nopposed a discount grounded in Mr. Frazier’s contention that the\n\nTaxpayers had transferred less than full limited partners\n\ninterests. The Commissioner does not, however, advance such a\n\ncontention on appeal; so it too is waived, and we do not address\n\nthat issue.19 Our failure to address it should not, however, be\n\nviewed as either agreeing or disagreeing with the Majority’s\n\ndetermination on this point. Rather, as shall be shown, we have no\n\nneed to reach it.\n\n 3. Fair Market Value of Interests in MIL Transferred by the\n Taxpayers\n\n Contributing to the framework of our review in this section is\n\nthe sometimes overlooked fact that this family-partnership case is\n\nnot an estate tax case, but a gift tax case. Thus, the aggressive\n\n\n 18\n Emphasis ours.\n 19\n See supra note 17 and accompanying text.\n\n 21\n\fand sophisticated estate planning embodied here is not typical of\n\nthe estate plans that have produced the vast majority of post-\n\nmortem estate tax valuation cases.20 Also helping to frame our\n\nreview is the fact that this is not a run-of-the-mill fair market\n\nvalue gift tax case. Rather, as recognized by the Majority and by\n\nJudges Chiechi and Foley in dissent, the feature that most\n\nfractionated the Tax Court here is the Taxpayers’ use of the\n\ndollar-formula, or “defined value,” clause specified in the\n\nAssignment Agreement (the gift instrument, not either the original\n\nor the amended partnership agreement nor the Confirmation\n\nAgreement) to quantify the gifts to the various donees in dollars\n\nrather than in percentages, the latter being more commonly\n\nencountered in gifts and bequests that parcel out interests in such\n\nassets as corporate stock, partnerships, large tracts of land, and\n\nthe like.\n\n a. Fair Market Value Must Be Determined on Date of\n Gift.\n\n As detailed above, the Taxpayers irrevocably and gratuitously\n\ndonated their entire remaining interests in MIL, constituting in\n\nthe aggregate 82.33369836 per cent of that partnership. They did\n\nso on January 12, 1996 by executing the Assignment Agreement, which\n\nspecified in dollars the quantum of all gifts of interests in MIL,\n\nexcept for the one to CFT which was a residual donation of whatever\n\n\n 20\n Cf., e.g., Strangi v. Commissioner, 417 F.3d 468 (5th\nCir. 2005).\n\n 22\n\finterest remained —— if any —— after all other gifts had been\n\nsatisfied. Mr. Frazier appraised the fair market value of the\n\ninterests given at $89,505 per one per cent ($7,369,215 for the\n\nTaxpayers’ entire remaining interests in MIL),21 and the Taxpayers\n\nfiled gift tax returns calculated on these values.\n\n The Commissioner’s deficiency notices were based on a total\n\nvalue of the interest given, before adjustments, of $14,140,730,\n\nalmost double the Frazier values used by the Taxpayers in preparing\n\ntheir gift tax returns. The Commissioner calculated his asserted\n\ntotal value by using $171,749 as the value of a one-percent\n\ninterest in MIL.\n\n The Commissioner introduced the expert opinion of Mukesh\n\nBajaj, Ph.D. This expert’s bottom line was that the fair market\n\nvalue of a one-percent interest in MIL on the date of the gift was\n\n$150,665.54, producing a total fair market value of $12,404,851.12.\n\nThus, the Commissioner’s own expert calculated the aggregate fair\n\nmarket value of all gifts to be $1,735,879 less than the value\n\nasserted by the Commissioner in his deficiency notices. Even\n\nthough Dr. Bajaj disagreed with the values returned by the\n\nTaxpayers, he also disagreed substantially with the values asserted\n\nby the Commissioner in his delinquency notices.22\n\n 21\n The Commissioner’s appellate brief uses $7,369,303.\n 22\n This exemplifies a practice of the IRS that we see with\ndisturbingly increased frequency, e.g., a grossly exaggerated\namount asserted in a notice of deficiency. See, e.g., Caracci v.\nCommissioner, --- F.3d --- (5th Cir. 2006), 2006 WL 1892600.\n\n 23\n\f The Taxpayers adduced the testimony of Mr. Frazier and the\n\ndocumentary evidence he offered in support of his opinion,\n\nreiterating in detail his appraisal methodology and his conclusion\n\nthat $89,505 was indeed the fair market value of one per cent of\n\nthe interests donated by the Taxpayers as of January 12, 1996. The\n\nTaxpayers thereby provided the evidentiary underpinning of their\n\nproffered values.\n\n Fast forward two years: Judge Foley’s judgment for the\n\nTaxpayers based on the Commissioner’s failure to meet his burden of\n\nproof is vacated and replaced by the Majority’s. The Majority’s\n\nopinion substantively treats neither the nature of the\n\nCommissioner’s burden of proof nor whether he met it. Instead, the\n\nMajority confects its own methodology grounded in significant part\n\nin the donees’ post-gift Confirmation Agreement. The Majority\n\nfirst proceeds independently to appraise the donated property,\n\neventually reaching a value precisely halfway between those of Mr.\n\nFrazier and Dr. Bajaj.23 As we hereafter hold, as a matter of law,\n\nthat the methodology employed by the Majority in determining the\n\ntaxable and non-taxable values of the various donations constitutes\n\nlegal error, the results of the Majority’s independent appraisal of\n\n 23\n The value of $120,046 per one-percent interest produced\nby the Majority has a de minimis $39 variance from the\narithmetically precise median between the dueling experts’\nrespective one-percent values: (a) $89,505 plus $150,665 =\n$240,170; (b) $240,170 divided by 2 = $120,085; (c) $120,085\nminus $120,046 = $39. Thus the Majority split this almost $10\nmillion baby precisely halfway between the experts’ respective\nvalues.\n\n 24\n\fthe donated interests in MIL and their values for gift tax\n\npurposes, become irrelevant to the amount of the gift taxes owed by\n\nthe Taxpayers.24\n\n b. Re-Allocating Values of Gifts Based on Post-Gift\n Acts of Donees.\n\n Under the instant circumstances, the ultimate-valuation “fact”\n\nis at most a mixed question of fact and law, and thus a legal\n\nconclusion.25 Particularly when, as here, the determination of the\n\nfair market value for gift tax purposes requires legal conclusions,\n\nour review is de novo.26 Indeed, it is settled in this circuit and\n\nothers that a trial court’s methodology in resolving fact questions\n\nis a legal issue and thus reviewable de novo on appeal.27\n\n\n 24\n Even though (1) Judge Swift concurred, (2) Judges Chiechi\nand Foley separately concurred in part and dissented in part (and\njoined each others opinions), and (3) Judge Laro dissented and\nwas joined by Judge Vasquez, none of these five judges advocated\nsubstantially different valuation methodologies than the one\nemployed by the Majority to determine date-of-gift values before\nthe Majority proceeded to apply the provisions of the\nConfirmation Agreement to such values so as to re-allocate\npercentage interests. This we assume is because they (at least\nthe four judges who totally or partially dissented) would never\nhave reached the question of fair market value, because they were\neither sustaining the Taxpayers for the Commissioner’s failure to\nmeet his burden of proof, or sustaining the Commissioner under\none or more of the equitable doctrines he advanced at trial but\nhas abandoned on appeal.\n 25\n See Estate of Dunn v. Commissioner, 301 F.3d 339, 357\n(5th Cir. 2002).\n 26\n See Adams v. United States, 218 F.3d 383, 386 (5th Cir.\n2000).\n 27\n See, e.g., Estate of Dunn, 301 F.3d at 357; Adams, 218\nF.3d at 386 (“Inasmuch as the trial court’s ultimate finding here\nis predicated on a legal conclusion regarding the rights inherent\n\n 25\n\f The Majority’s key legal error was its confecting sua sponte\n\nits own methodology for determining the taxable or deductible\n\nvalues of each donee’s gift valuing for tax purposes here. The\n\ncore flaw in the Majority’s inventive methodology was its violation\n\nof the long-prohibited practice of relying on post-gift events.28\n\nSpecifically, the Majority used the after-the-fact Confirmation\n\nAgreement to mutate the Assignment Agreement’s dollar-value gifts\n\ninto percentage interests in MIL. It is clear beyond cavil that\n\nthe Majority should have stopped with the Assignment Agreement’s\n\nplain wording. By not doing so, however, and instead continuing on\n\nto the post-gift Confirmation Agreement’s intra-donee concurrence\n\non the equivalency of dollars to percentage of interests in MIL,\n\nthe Majority violated the firmly-established maxim that a gift is\n\nvalued as of the date that it is complete; the flip side of that\n\nmaxim is that subsequent occurrences are off limits.29\n\n In this respect, we cannot improve on the opening sentence of\n\nJudge Foley’s dissent:\n\n Undaunted by the facts, well-established legal precedent,\n and respondent’s failure to present sufficient evidence\n to establish his determinations, the majority allow their\n\n\nin the property, its valuation is subject to de novo review.”).\n 28\n See, e.g., Ithaca Trust Co. v. United States, 279 U.S.\n151 (1929); Estate of McMorris v. Commissioner, 243 F.3d 1254\n(10th Cir. 2001); Estate of Smith v. Commissioner, 198 F.3d 515,\n522 (5th Cir. 1999)(“[T]he value of the thing to be taxed must be\nestimated as of the time when the act is done.”)(quoting Ithaca\nTrust Co., 279 U.S. at 155)(emphasis in original).\n 29\n See supra note 28.\n\n 26\n\f olfaction to displace sound legal reasoning and adherence\n to the rule of law.30\n\nJudge Foley’s “facts” are those stipulated and those adduced\n\n(especially the experts’ testimony) before him as the lone trial\n\njudge, including the absence of any probative evidence of\n\ncollusion, side deals, understandings, expectations, or anything\n\nother than arms-length, unconditional completed gifts by the\n\nTaxpayers on January 12, 1996, and arm’s-length conversions of\n\ndollars into percentages by the donees alone in March. Judge\n\nFoley’s “well-established legal precedent” includes, without\n\nlimitation, constant jurisprudence that has established the\n\nimmutable rule that, for inter vivos gifts and post-mortem bequests\n\nor inheritances alike, fair market value is determined, snapshot-\n\nlike, on the day that the donor completes that gift (or the date of\n\ndeath or alternative valuation date in the case of a testamentary\n\nor intestate transfer).31 And, Judge Foley’s use of “olfaction” is\n\nan obvious, collegially correct synonym for the less-elegant\n\nvernacular term, “smell test,” commonly used to identify a decision\n\nmade not on the basis of relevant facts and applicable law, but on\n\nthe decision maker’s “gut” feelings or intuition. The particular\n\nolfaction here is the anathema that Judge Swift identifies\n\npejoratively in his concurring opinion as “the sophistication of\n\n\n\n 30\n McCord, 120 T.C. at 416 (Foley, J., concurring in part\nand dissenting in part) (emphasis added).\n 31\n See, e.g., Estate of Smith, 198 F.3d at 522.\n\n 27\n\fthe tax planning before us.”32 The Majority’s election to rule on\n\nthe basis of this olfaction is likewise criticized by Judge Laro,\n\ndissenting in part, as the\n\n Majority Appl[ying] Its Own Approach:\n\n To reach the result that the majority desires, the\n majority decides this case on the basis of a novel\n approach neither advanced nor briefed by either party\n . . . .33\n\n Judge Foley also disagrees with the Majority —— and rightly\n\nso, we conclude —— for basing its holding on an interpretation of\n\nthe Assignment Agreement and an application of the Confirmation\n\nAgreement that the Commissioner never raised. To this criticism we\n\nadd that the Majority not only made a contractual interpretation of\n\nthe Assignment Agreement that rests in part on the non sequitur\n\nthat it uses the term “fair market value” without including the\n\nmodifying language “as finally determined for tax purposes,”34 but\n\nalso indicated a palpable hostility to the dollar formula of the\n\ndefined value clause in that donation agreement. This is\n\nexacerbated by the Majority’s lip service to, but ultimate\n\ndisregard of, the immutable principal that value of a gift must be\n\ndetermined as of the date of the gift. The Majority violates this\n\n\n 32\n McCord, 120 T.C. at 404 (Swift, J., concurring).\n 33\n Id. at 425 (Laro, J., dissenting) (emphasis in original).\n 34\n Id. at 418-419 (Foley, J., concurring in part and\ndissenting in part) (“There is no material difference between\nfair market value ‘determined under Federal gift tax valuation\nprinciples’ and fair market value ‘as finally determined for\nFederal gift tax purposes.’”).\n\n 28\n\fdoctrine when it relies in principal part on the post-gift actions\n\nof the donees in their March 1996 execution of the Confirmation\n\nAgreement. Judge Foley correctly notes that the Majority erred in\n\nconducting\n\n [A] tortured analysis of the [A]ssignment [A]greement\n that is, ostensibly, justification for shifting the\n determination of transfer tax consequences from the date\n of the transfer [January 12, 1996]...to March 1996 (i.e.,\n the date of the [C]onfirmation [A]greement). The\n majority’s analysis of the [A]ssignment [A]greement\n requires that [Taxpayers] use the Court’s valuation to\n determine the [dollar] value of the transferred\n interests, but the donees’ appraiser’s valuation to\n determine the [percentages of] interests transferred to\n the charitable organizations. There is no factual,\n legal, or logical basis for this conclusion.35\n\n We obviously agree with Judge Foley’s unchallenged baselines\n\nthat the gift was complete on January 12, 1996, and that the courts\n\nand the parties alike are governed by § 2512(a). We thus agree as\n\nwell that the Majority reversibly erred when, “in determining the\n\ncharitable deduction, the majority rely on the [C]onfirmation\n\n[A]greement without regard to the fact that [the Taxpayers] were\n\nnot parties to this agreement, and that this agreement was executed\n\nby the donees more than 2 months after the transfer.”36 In taking\n\nissue with the Majority on this point, Judge Foley cogently points\n\nout that “[t]he Majority appear to assert, without any authority,\n\n\n\n 35\n Id. at 416-17 (emphasis added).\n 36\n Id. at 417-18 (citing Ithaca Trust Co., 279 U.S. at 155;\nEstate of McMorris, 243 F.3d at 1259-60; Estate of Smith, 198\nF.3d at 522; Propstra v. United States, 680 F.2d 1248, 1250-51\n(9th Cir. 1982)).\n\n 29\n\fthat [the Taxpayers’] charitable deduction cannot be determined\n\nunless the gifted interest is expressed in terms of a percentage or\n\na fractional share.”37 As implied, the Majority created a valuation\n\nmethodology out of the whole cloth. We too are convinced that\n\n“[r]egardless of how the transferred interest was described, it had\n\nan ascertainable value” on the date of the gift.38 That value\n\ncannot, of course, be varied by the subsequent acts of the donees\n\nin executing the Confirmation Agreement. Consequently, the values\n\nascribed by the Majority, being derived from its use of its own\n\nimaginative but flawed methodology, may not be used in any way in\n\nthe calculation of the Taxpayers’ gift tax liability.\n\n In the end, whether the controlling values of the donated\n\ninterests in MIL on the date of the gifts are those set forth in\n\nthe Assignment Agreement based on Mr. Frazier’s appraisal of\n\n$89,505 per one per cent or those reached by the Majority before it\n\ninvoked the Confirmation Agreement (or even those used by the\n\nCommissioner in the deficiency notices or those reached by the\n\nCommissioner’s expert witness for that matter), have no practical\n\neffect on the amount of gift taxes owed here. Nevertheless, given\n\nthe Majority’s non-erroneous rejection of the Commissioner’s\n\nexperts’s values and, as we shall show, its own legal error, not\n\napplying a discount to account for the present negative value of\n\n\n\n 37\n Id. at 418.\n 38\n Id.\n\n 30\n\fthe non-exempt donees’ assumed liability for § 2035 estate taxes\n\n(even before the Majority translated the defined value clause’s\n\ndollars into percentages by use of the Confirmation Agreement), the\n\nfair market values applicable in this case are, by a process of\n\nelimination, those determined by the Frazier report and used by the\n\nTaxpayers in preparing their gift tax returns for 1996. In sum, we\n\nhold that the Majority erred as a matter of law. Accordingly, the\n\ntaxable values used by the Taxpayers in preparing their gift tax\n\nreturns must stand, subject only to the question of their having\n\nbeen arrived at, in part, by applying the actuarially determined\n\npresent value of the non-exempt donees’ assumed responsibility for\n\npayment of estate taxes, if any, under § 2035. We address that\n\nissue now.\n\n 4. Effect on Present Fair Market Values of Potential Estate\n Taxes Under § 2035\n\n Taxes paid by a non-exempt donee on the value of property\n\ngratuitously transferred reduces the taxable value of such gift.39\n\nIn calculating the taxable value of their 1996 gifts, the Taxpayers\n\nemployed a variation on the venerable “net gift” theme for reducing\n\nthat taxable value. They did so in calculating not only the\n\namounts of correct gift taxes assumed by the non-exempt donees, but\n\nalso in calculating the mortality-driven discount that a willing\n\nbuyer would require to account for additional estate taxes that\n\nthese donees would have to pay, pursuant to § 2035, if the\n\n\n 39\n See, e.g., Rev. Rul. 75-72, 1975-1 C.B. 310.\n\n 31\n\fTaxpayers or either of them should die within three years following\n\nthe gift. The Majority held for the Commissioner, who contended\n\nthat this particular factor is “too” speculative to be recognized\n\nin calculating the net gift. It appears that the dissenters and\n\nconcurrers would have agreed with the Majority on this point. We,\n\nhowever, disagree with the Majority and therefore reverse its\n\nruling on this issue too.\n\n There is nothing speculative about the date-of-gift fact that\n\nif either or both Taxpayers were to die within three years\n\nfollowing the gift (as did Mr. McCord), the non-exempt donees would\n\nhave been (and, coincidently, were) legally bound to pay the\n\nadditional estate tax that could result from the provisions of §\n\n2035. It is axiomatic contract law that a present obligation may\n\nbe, and frequently is, performable at a future date. It is also\n\naxiomatic that responsibility for the future performance of such a\n\npresent obligation may be either firmly fixed or conditional, i.e.,\n\neither absolute or contingent on the occurrence of a future event,\n\na “condition subsequent.” And, it is axiomatic that any\n\nconditional liability for the future performance of a present\n\nobligation is —— to a greater or lesser degree —— “speculative.”\n\nThe issue here, though, is not whether § 2035's condition\n\nsubsequent is speculative vel non, but whether it is too\n\nspeculative to be applicable, a very elastic yardstick indeed.\n\n Conditions subsequent come in a variety of flavors: A future\n\nevent that is absolutely certain to occur, such as the passage of\n\n 32\n\ftime; a future event, like the act of a third party that is not\n\nabsolutely certain to occur, but nevertheless may be a “more ...\n\ncertain prophec[y]”40; a possible, but low-odds, future event, such\n\nas the reversion of an interest in property if the unmarried and\n\nchildless life tenant not only survives the transferor, but herself\n\nbears children who live to the age of majority and at least one of\n\nwhom survives the transferor, as in Robinette v. Helvering,41\n\nundeniably a “less ... certain prophec[y] of the future.”42 And\n\nthere are all degrees and shades of certainty along the\n\n“speculative” continuum, from absolute certainty to essentially\n\ntotal impossibility.\n\n The issue presented here regarding the degree of certainty of\n\nthe assumed obligation under § 2035, is a legal one (which we\n\nreview de novo) To what conditions subsequent are the exempt\n\ndonees’ assumed § 2035 obligations subject, and thus\n\n“speculative”?; and, in combination, do these conditions\n\nsubsequent’s respective degrees of uncertainty make the contingent\n\nobligation in question too speculative to be credited for purposes\n\nof valuing the gift to the non-exempt donee? The judicial\n\ndetermination of how much is too much is a subjective one; yet it\n\nremains a mixed question of law and ultimate fact, to be reviewed\n\n\n\n 40\n Ithaca Trust Co., 279 U.S. at 155.\n 41\n 318 U.S. 184 (1943).\n 42\n Ithaca Trust Co., 279 U.S. at 155.\n\n 33\n\fde novo on the basis of an analysis of all the relevant and\n\nmaterial discrete facts. Here, the discrete facts are not in\n\ndispute; only the extent to which, together, they make the\n\nprobability of the occurrence of § 2035's condition subsequent too\n\nspeculative to credit.\n\n Putting ourselves in the shoes of the ubiquitous “willing\n\nbuyer,” we must first identify each factor that, by future change,\n\ncould affect the likelihood that the non-exempt donees’ will\n\neventually have to pay the additional § 2035 estate tax. After\n\nthat, we must identify which of those factors a willing buyer would\n\n(and we, as a matter of law, must) take into consideration in\n\ndeciding whether it is too speculative for him to insist on its\n\nbeing used in reaching a price that the seller is willing to\n\naccept. It is in this context that we must make subjective\n\ndeterminations as to (1) where, on that continuum between absolute\n\ncertainty and virtual uncertainty the non-exempt donees’\n\ncontractually assumed responsibility for § 2035 estate taxes falls,\n\nand then (2) whether it is so speculative that our willing buyer\n\nwould not insist on its being taken into consideration as a\n\ndiscount that a willing seller must accept.\n\n Those donees’ future performance of their present § 2035\n\nobligation was subject to a number of factors and conditions at the\n\ntime in January 1996 that the gifts were made. And, some of these\n\nfactors are not totally predictable or quantifiable:\n\n\n\n 34\n\f (1) The amount of gift taxes owed by the Taxpayers\n for these gifts.\n\n (2) Whether there would be an estate tax or\n essentially identical death-related transfer tax in\n existence at the time of the death(s) of a Taxpayer or\n Taxpayers.\n\n (3) Whether the amount of gift taxes on the 1996\n gifts would be taxable under § 2035, or some similar\n successor I.R.C. section, in the estate of a Taxpayer who\n dies within three years following the gift.\n\n (4) Whether, if such an estate tax would exist at\n the future death of a Taxpayer and, under it, the amount\n of the 1996 gift taxes are subjected to the marginal\n estate tax rate by § 2035 or any successor provision,\n that rate will be greater than, less than, or the same as\n the rate that was in effect on January 12, 1996.\n\n (5) Whether, if § 2035 or its equivalent is in\n effect at the death or deaths of the Taxpayers, it will\n still be conditioned on survivorship for three years\n after the 1996 gifts, and if so, the period of\n survivorship will be the same, shorter, or longer than\n three years.\n\n (6) Whether the interest rate that a willing buyer\n and willing seller of the transferred partnership\n interests would agree to use in discounting their price\n to account for the negative value of the seller’s\n potential obligation under § 2035 would be the same rate\n of interest as it was on the date of the gifts.\n\n (7) What would be the additional discount in value\n for the § 2035 obligation, based on actuarial odds that\n the measuring life would exceed the three-year\n survivorship trigger that automatically terminates the §\n 2035 obligation.\n\nWe consider each of these factors in turn.\n\n Regarding the continued existence of (1) the estate tax law in\n\nits date-of-gift form and content, including § 2035, and (2) the\n\nestate tax rates in their date-of-gift percentages, this and other\n\ncourts have repeatedly held that potential future changes in, or\n\n 35\n\fthe continued existence of, the federal income tax law in general\n\nand of the capital gains tax in particular, are not contingencies\n\nthat a willing buyer would take into consideration.43 For purposes\n\nof our willing buyer/willing seller analysis, we perceive no\n\ndistinguishable difference between the nature of the capital gains\n\ntax and its rates on the one hand and the nature of the estate tax\n\nand its rates on the other hand. Rates and particular features of\n\nboth the capital gains tax and the estate tax have changed and\n\nlikely will continue to change with irregular frequency; likewise,\n\ndespite considerable and repeated outcries and many aborted\n\nattempts, neither tax has been repealed. Even though the final\n\namount owed by the Taxpayer as gift tax on their January 1996 gifts\n\nto non-exempt donees has yet to be finally determined (depending,\n\nas it does, on the final results of this case), we are satisfied\n\nthat the transfer tax law and its rates that were in effect when\n\nthe gifts were made are the ones that a willing buyer would insist\n\non applying in determining whether to insist on, and calculate, a\n\ndiscount for § 2035 estate tax liability.\n\n The same is true for the interest rate at which a willing\n\nbuyer would discount the § 2035 obligation to determine its present\n\nvalue. The rate of interest is not, however, a matter of\n\nspeculation. § 7520 dictates precisely the rate of interest to be\n\n\n\n 43\n See, e.g., Estate of Dunn, 301 F.3d at 351; Estate of\nJameson v. Commissioner, 77 T.C.M. (CCH) 1383 (1999), rev’d on\nother grounds, 267 F.3d 366 (5th Cir. 2001).\n\n 36\n\fapplied; and here, it is the rate that was applicable on the date\n\nof the gift. That date is, after all, the date on which our\n\nmythical willing buyer is deemed to have made his offer and had it\n\naccepted. The interest tables promulgated by the government bind\n\nthe Commissioner and the Taxpayers alike.\n\n This leaves for our examination only § 2035's condition\n\nsubsequent —— the ipso facto three-year expiration of liability for\n\nadditional estate tax if the Taxpayer in question lives that long\n\nafter making the gift. We must decide whether, in combination with\n\nthe other above-identified factors, § 2035's three-year repose\n\npushes the obligation assumed by the non-exempt donees beyond the\n\npoint on the “speculative” continuum at which this concededly\n\nuncertain factor becomes too speculative. Even though neither we\n\nnor the Tax Court has addressed this precise question before,44 we\n\nconclude on plenary review that it does not.\n\n First, the Commissioner has never contended that Mr. Frazier’s\n\narithmetic in calculating the net taxable value of the January 1996\n\ngifts was erroneous; only that, inter alia, no discount should have\n\nbeen taken for the § 2035 factor. Neither did the Commissioner\n\n\n\n 44\n McCord, 120 T.C. at 401-02 (stating “[t]he specific\nquestion before us is whether to treat as part of the sale\nproceeds (consideration) received by each [Taxpayer] on the\ntransfer of the gifted interest any amount on account of the\n[non-exempt donees’] obligation pursuant to the [A]ssignment\n[A]greement to pay the [§] 2035 tax that would be occasioned by\nthe death of that [Taxpayer] within 3 years of the valuation\ndate. We have not faced that specific question before.”)\n(emphasis added).\n\n 37\n\fdispute that, if legally applicable, the estate and gift tax laws\n\nand rates then in existence were those that were applied; nor that\n\nthe correct interest rate for the present-value discount was used;45\n\nnor that the ages of the Taxpayers or the actuarially determined\n\nmortality factors for the Taxpayers at those ages were correct.46\n\nAgain, then, the only legal question that remains unanswered in\n\nour de novo review is: Was the limitation of three years on the\n\nTaxpayers’ exposure to the additional estate taxes imposed by §\n\n2035 (which the non-exempt donees assumed), when viewed in pari\n\nmateria with all other relevant factors and circumstances, too\n\nspeculative to be included when Mr. Frazier calculated the net\n\ntaxable value of those 1996 gifts? We answer this question in the\n\nnegative, because we are convinced as a matter of law that a\n\nwilling buyer would insist on the willing seller’s recognition that\n\n—— like the possibility that the applicable tax law, tax rates,\n\ninterest rates, and actuarially determined life expectancies of the\n\nTaxpayer could change or be eliminated in the ensuing three years\n\n—— the effect of the three-year exposure to § 2035 estate taxes was\n\nsufficiently determinable as of the date of the gifts to be taken\n\n\n\n\n 45\n I.R.C. § 7520.\n 46\n Table 80CNSMT, in Treas. Reg. § 20.2031-\n7A(e)(4)(effective April 30, 1989 through May 1, 1999); see\nIthaca Trust Co., 279 U.S. at 155 (stating that property\ninterests that terminate automatically at the death of the\nlifetime owner “must be estimated by the mortality tables.”).\n\n 38\n\finto account.47 And, after all, it is the willing buyer/willing\n\nseller test that we are bound to apply.48\n\n III. Conclusion\n\n For the foregoing reasons, we reverse the rulings and judgment\n\nof the Tax Court as embodied in the Majority’s opinion.\n\nAccordingly, we hold that (1) given the Majority’s reversible\n\nerrors in evaluating the donated interest and using them in\n\ncalculating gift taxes by (a) employing the Confirmation Agreement\n\nin its own calculations and (b) rejecting the § 2035 estate tax\n\nliability to discount the appraised value, the taxable value of the\n\n\n\n 47\n Our holding today approving use of the “mortality-\nadjusted” present value of the § 2035 contingent liability for\nestate taxes is not weakened by the cases cited by the Majority.\nIt concedes that “neither Armstrong Trust v. United States, [132\nF.Supp. 2d 421 (W.D.Va. 2001)], nor Murray v. United States, [687\nF.2d 386 (Ct. Cl. 1982)], is binding on us, and, indeed, the\nfacts of both cases are somewhat different from the facts before\nus today.” Armstrong Trust involved the donees’ statutory\nliability under § 6324(a)(2) for all § 2035 estate taxes, a\nsignificantly more speculative contingency than the precise\ncondition and precisely determinable amount of § 2035 estate\ntaxes in this case. In Murray, the Court of Claims considered a\nsubstantially different and more speculative contingent liability\nthan the instant donees for the “gross up” three-year absolute\nliability of the Taxpayers under § 2035. Even more inapposite is\nthe 63-year-old Supreme Court opinion in Robinette v. Helvering,\n318 U.S. 184 (1943), a case involving the value of a highly\nspeculative reversion to the donor, which was contingent not only\non his outliving his 30-year-old daughter, but also on her having\nchildren, at least one of whom attained the age of 21. That\nvenerable case casts no shadow on our conclusion here.\n 48\n Treas. Reg, § 25.2512-1; see, e.g., Estate of Newhouse v.\nCommissioner, 94 T.C. 218, (1990)(citing Estate of Bright v.\nUnited States, 658 F.2d 999, 1006 (5th Cir. 1981)); see also\nShepherd v. Commissioner, 283 F.3d 1258, 1262 n.7 (11th Cir.\n2002).\n\n 39\n\finterests in MIL given by the Taxpayers to the Sons and the GST\n\nTrusts is not those determined by the Tax Court but are those\n\ndetermined and used by the Taxpayers, viz., $6,910,932.52; (2) the\n\nTaxpayers are entitled to a charitable deduction for the interests\n\nin MIL transferred to CFT under the Assignment Agreement in the\n\namount of $324,345.16, being the base fair market value as\n\ndetermined by Mr. Frazier ($7,369,277.67), less the amounts given\n\nto the non-exempt donees ($6,910,932.51) and less the amount given\n\nto the Symphony ($134,000); (3) the January 12, 1996 taxable values\n\nof the interests in MIL given to the non-exempt donees were\n\nproperly determined by applying, among other discounts, the\n\nactuarially determined date-of-gift present “value” of the\n\nobligation assumed by these donees to pay § 2035 estate taxes; and\n\n(4) the resulting fair market value of all interests transferred by\n\nthe Taxpayers under the Assignment Agreement on January 12, 1996,\n\nwere, respectively, $2,475,896.40 and $2,482,604.82; after annual\n\nexclusions and charitable contribution deductions, $2,206,724 and\n\n$2,213,432, respectively, as taxable gifts.\n\n Accordingly, we reverse the holding of the Tax Court, and we\n\nremand this case to that court for entry of judgment for the\n\nPetitioners, consistent with this opinion, including, without\n\nlimitation, assessment of all costs to the Respondent.\n\nREVERSED and REMANDED for entry of consistent judgment.\n\n\n\n\n 40\n\f41\n\f", "ocr": false, "opinion_id": 45933 } ]

[ "200 F. App'x 325" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 5, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\05/05-30907.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n September 15, 2006\n FOR THE FIFTH CIRCUIT\n Charles R. Fulbruge III\n Clerk\n\n\n No. 05-30907\n\n\n\nEDUARDO FERNANDEZ,\n Plaintiff-Appellant,\n\n versus\n\nJO ANNE B. BARNHART,\nCOMMISSIONER OF SOCIAL SECURITY,\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Louisiana\n\n\nBefore SMITH and STEWART, Circuit Judges, and HANEN,* District Judge.\n\nPER CURIAM:**\n\n Eduardo Fernandez challenged a determination by the Social Security Commissioner that his\n\nretirement benefits should be reduced under the Windfall Elimination Provision (“WEP”), 42 U.S.C.\n\n§ 415(a)(7), on the bases that, alternatively, the provision does not apply to him, the provision is an\n\nunconstitutional deprivation of property, the provision is an ex post facto law, or the Commissioner’s\n\ninterpretation of the provision is unconstitutional under the Fifth Amendment. The district court\n\nrejected all of Fernandez’s challenges to the reduction, and we affirm the district court’s ruling.\n\n\n *\n District Judge of the Southern District of Texas, sitting by designation.\n **\n Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published\nand is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.\n\f I. FACTUAL AND PROCEDURAL HISTORY\n\n Fernandez was born on December 19, 1926, and attained the age of sixty-five in 1991. Also\n\nin 1991, he started receiving federal social security retirement (“RSI”) benefits based on his\n\nemployment between 1970 and 1982. In 2000, he began receiving additional retirement benefits from\n\na pension plan based on his employment between 1978 and 1999 for the State of Louisiana. The\n\nCommissioner of Social Security notified Fernandez in 2002 that his RSI benefits were being\n\npermanently reduced under the WEP because of his pension benefits and that his RSI benefits would\n\nbe temporarily reduced even further to compensate for the overpayments that Fernandez received\n\nfrom 2000 until the application of the WEP to him in 2002.\n\n Fernandez appealed this reduction to an administrative law judge who denied his claims. He\n\nappealed that decision to the Appeals Council, which has not yet ruled on his claim.1 Fernandez filed\n\nsuit in federal court on September 5, 2003. In 2005, a magistrate judge recommended that\n\nFernandez’s suit be dismissed, and the district court agreed. Fernandez filed a timely appeal with this\n\ncourt.\n\n II. DISCUSSION\n\n In 1983 Congress enacted 42 U.S.C. § 415(a)(7), the WEP, which provided that the “primary\n\ninsurance amount” of certain individuals entitled to benefits must be “computed or recomputed” in\n\naccordance with § 415(a)(7)(B). The relevant parts of the provision apply to any individual who:\n\n (i) attains age 62 after 1985 . . .\n\n and who first became eligible after 1985 for a monthly periodic payment . . . which\n\n is based in whole or in part upon his or her earnings for service which did not\n\n\n 1\n The district court waived the exhaustion requirement, and that issue is not before this court.\n\n 2\n\f constitute “employment,” as defined in section 410 of this title for purposes of this\n\n subchapter.\n\nThe WEP therefore “applies to any individual who earned both covered and noncovered wages. The\n\nWEP was enacted to eliminate the windfall such an individual would enjoy in the absence of such a\n\nprovision.” Das v. Dep’t of Health and Human Servs., 17 F.3d 1250, 1253 (9th Cir. 1994).\n\n Fernandez’s first contention is that the WEP does not apply to him because he satisfied all the\n\nrequirements necessary to earn RSI benefits before the WEP was enacted. Fernandez asserts that in\n\norder for the WEP to retroactively restrict his benefits, there must be a provision that specifically\n\nmentions those already eligible for benefits but who have not yet reached the required age. The WEP\n\napplies if, prior to 1986, an individual had not yet reached the age of sixty-two, regardless of whether\n\nor not the individual qualified to receive RSI benefits upon retirement age prior to the enactment of\n\nthe WEP. The eligibility provision applies directly to Fernandez who turned sixty-two after 1985 and\n\nbecame eligible after 1985 for a retirement benefit that was not based on employment eligible for RSI\n\nbenefits. Therefore, Fernandez’s benefits were correctly reduced according to the provisions of the\n\nWEP.\n\n Fernandez next argues that the WEP is an unconstitutional deprivation of property because\n\nhis right to RSI benefits had vested. This court has rejected attacks on the retroactive application of\n\nsocial security benefit changes, holding that “social security benefits [ ] are not contractual and may\n\nbe altered or even eliminated at any time” and that an individual has “no vested property or\n\ncontractual rights in social security benefits.” Brown v. Apfel, 192 F.3d 492, 497 (5th Cir. 1999); see\n\nalso Flemming v. Nestor, 363 U.S. 603, 611 (1960). Nor do we find persuasive Fernandez’s\n\ncontention that the RSI benefits are substantively different than the Supplemental Security Income\n\n\n 3\n\fbenefits at issue in Brown. The WEP does not constitute an unconstitutional taking of property or\n\na breach of contract by the U.S. government.\n\n Fernandez also contests the reduction of his benefits because the reduction is an ex post facto\n\nlaw. The prohibition against ex post facto laws applies only to laws that are criminal or penal in\n\nnature. See, e.g., Smith v. Doe, 538 U.S. 84, 92 (2003). The Social Security Act is not criminal or\n\npenal as applied to Fernandez. Thus, Fernandez has not made out a valid claim that the application\n\nof the WEP to his benefits violates the constitutional prohibition against ex post facto laws.\n\n Finally, Fernandez argues that the Commissioner’s interpretation of the WEP is\n\ndiscriminatory2 and results in the WEP being unconstitutional as applied to him. Fernandez contends\n\nthat the Commissioner interprets the WEP as applying only to those who were eligible for RSI\n\nbenefits before 1986 and not applying to those who were eligible for private pension benefits before\n\n1986. However, Fernandez’s description of the Commissioner’s interpretation is incorrect.\n\n The Commissioner has interpreted the WEP as applying if a person has not met all the\n\nprerequisites, including the age prerequisite, necessary to receive benefits.3 The WEP does apply to\n\nthose who are eligible for benefits in a non-covered pension system, regardless of when they became\n\neligible, if they did not reach the age of retirement before January 1, 1986. See, e.g., Stroup v.\n\nBarnhart, 327 F.3d 1258 (11th Cir. 2003) (applying the WEP to a former police officer who was\n\n\n\n 2\n Although “the Fifth Amendment contains no equal protection clause, it does forbid discrimination\nthat is ‘so unjustifiable as to be violative of due process.’” Schneider v. Rusk, 377 U.S. 163, 168\n(1964) (quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).\n 3\n While this court has not ruled specifically on the validity of this interpretation of the WEP in a\npublished opinion, we accept as persuasive precedent the Ninth Circuit’s decision in Das, 17 F.3d at\n1255-56, and note that as long as the Commissioner’s interpretation is reasonable, it is entitled to\ndeference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984).\n\n 4\n\feligible for pension benefits prior to 1986 and only qualified for RSI benefits after 1985). For the\n\nWEP to be in inapplicable to a specific case, a person must have had a present right to receive\n\nbenefits before 1986, regardless of whether that person is covered by Social Security or a private\n\npension fund. Because those who were covered under private pension systems before 1986 and those\n\ncovered under RSI benefits before 1986 are treated identically under the Commissioner’s\n\ninterpretation of the WEP, there is no discrimination of the kind Fernandez alleges and thus no Fifth\n\nAmendment claim.\n\n III. CONCLUSION\n\n For the above reasons, we AFFIRM the district court’s dismissal of Fernandez’s claims.\n\n\n\n\n 5\n\f", "ocr": false, "opinion_id": 46045 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 21, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cr0149-150", "author_id": 1844, "opinion_text": "UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\n\n \n\n)\nUNITED STATES OF AMERICA )\n)\nv. )\n) Criminal No. 07-149 (RCL)\nFARZAD DARUI, ) v §\n> F!LE \nDefendant. )\n) MAY ~;' zone\nER WH€TT\\NGTON.CLEBK\nWD\\STR\\CTCUM\nMEMORANDUM OPINION\n\nThe govemment’s prosecution of defendant in May 2008 resulted in a hung jury. Before\nthe Court are four motions by defendant Motion [l 07] for a Judgment of Acquittal; Motion\n[114] to Dismiss Superseding indictment as Violative of the Double Jeopardy Clause; Motion\n[128] to Dismiss the Indictment or Preclude at Retrial the Testimony of the Government’s\nPrincipal Witness Who Obstructed Justice, Made False Statements, and Committed Perjury; and\nMotion [142] to Dismiss Indictment with Prejudice and for Sanction of Government for\nManipulating Evidence, Submitting a False Affldavit, and Using False Testimony to Support\nAdmission of a Material Exhibit. On February 26, 2009, the Court heard oral argument on\nMotion [128]. As described below, the Court finds no grounds for judgment of acquittal,\n\ndismissal of the indictment, or sanction of the govemment, and all four motions shall be denied.\n\nBACKGROUND\n\nDefendant was prosecuted and tried for five counts of mail fraud, two counts of interstate\n\ntransportation of stolen property, one count of money laundering, and one count of theft. The\ncharges were all related to defendant’s alleged misappropriation of funds from the Islamic Center\nof Washington while he served as the Center’s business manager. The government’s main\nwitness at trial was Dr. Abdullah Khouj, the Center’s director and religious leader. After eleven\ntrial days, jury deliberations began on the aftemoon of Wednesday, May 2l, 2008. On that\n\nFriday aftemoon, the Court determined that the jury was hung and declared a mistrial.\n\nDISCUSSION\n\nA. Motion [107] for a Judgment of Acquittal\n\nThere are two parts to defendant’s Motion [107]. Thc first part, which seeks acquittal on\nthe mail fraud charges (Counts One through Five), can be disposed of quickly. Defendant\ncontends that \"[f] or the reasons asserted orally at trial, . . . there was no adequate proof of mail\nfraud because the mails were not used in furtherance of the alleged scheme to defraud.\" (Def.’s\nMot. [107] at l.) As defendant seems to recognize, during trial defendant made two oral motions\nfor dismissal based on insufficiency of the evidence, one after the government’s case and one\nafter all evidence had been submitted. The Court denied both motions. Defendant does not\nexplain how this motion, also claiming insufficiency of the evidence, differs from the ones made\nduring trial, nor why it should be granted while the trial motions were denied. Accordingly, the\nCourt cannot grant defendant’s motion for acquittal based on insufficiency of the evidence.\n\nThe second part of defendant’s Motion [107] is more substantial. Defendant claims that\nthe recent Supreme Court decision Um`ted States v. Santos, 128 S. Ct. 2020 (June 2, 2008),\n\n\"precludes prosecution of money laundering when there is no evidence the funds are profits.\"\n\n(Def.’s Mot. [107] at 2.) The federal money laundering statute under which defendant is\ncharged, 18 U.S.C. § 1957, targets\n\n[w]hoever, in any of the circumstances set forth in subsection (d), knowingly\n\nengages or attempts to engage in a monetary transaction in criminally derived\n\nproperty of a value greater than $10,000 and is derived from specified unlawful\n\nactivity. . . .\"\n18 U.S.C. § l957(a). \"‘Criminally derived property’ means any property constituting, or derived\nfrom, proceeds obtained from a criminal offense.\" 18 U.S.C. § 1957(f)(2) (emphasis added).\nDefendant contends that Santos defines \"proceeds\" as \"profits\" rather than gross receipts.\nTherefore, defendant continues, because the government has not presented evidence that\ndefendant’s financial transactions involved \"profits\" from his mail fraud-as opposed to mere\nreimbursements_Santos mandates that the money laundering count of the superseding\nindictment (Count Eight) be dismissed. The Court does not reach the same conclusion as to\nSantos’s holding.\n\nln Santos, Justice Scalia wrote for a four-Justice plurality that the term \"proceeds\" in a\nrelated federal money laundering statute, 18 U.S.C. § 195 6(a)(l), could be fairly interpreted as\neither \"profits\" or \"gross receipts.\"‘ Therefore, Justice Scalia continued, the \"rule of lenity,\"\nwhich requires that ambiguous criminal laws be interpreted with lenience toward the defendant,\nmandates that \"proceeds\" be interpreted as \"profits.\" Santos, 128 S. Ct. at 2025 (Scalia, J.). The\n\nfifth vote in favor of the \"profits\" interpretation came from Justice Stevens, writing separately\n\nand concurring with the judgment. But Justice Stevens suggested that the tenn could be defined\n\n‘Although defendant is not charged under § 1956, but rather under § 195 7, the term\n\"proceeds\" is undefined in either statute. Defendant contends that Santos is thus relevant to\ndefendant’s case. The government does not contest defendant’s position, nor does the Court.\n\n3\n\nas \"profits\" in the context of some money laundering operations but as \"gross receipts\" in others.\nId. at 2032 (Stevens, J., concurring) (\"[T]his Court need not pick a single definition of ‘proceeds’\napplicable to every unlawful activity, no matter how incongruous some applications may be.\").\nFor example, Justice Stevens wrote, \"the legislative history . . . makes it clear that Congress\nintended the term ‘proceeds’ to include gross revenues from the sale of contraband and the\noperation of organized crime syndicates involving such sales. But that history sheds no light on\nhow to identify the proceeds of many other types of specified unlawful activities.\" Id. (footnote\nomitted).z Because Justice Stevens concluded that a \"gross receipts\" definition would be\n\"perverse\" in the context of Santos_involving an illegal gambling operation_he concurred with\nthe judgment and interpreted the statutory term \"proceeds\" as \"profits.\" Id. The dissent,\nauthored by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Breyer,\nconcluded that \"proceeds\" should be defined as gross receipts (in the opinion’s words, “the total\namount brought in\"). Id. at 2035-2045 (Alito, J., dissenting).\nJustice Scalia, joined by Justices Souter and Ginsburg, took issue with Justice Stevens’\n\n99 66\n\nposition, stating that the Court had \"never once giving the same word, in the same statutory\nprovision, different meanings in different factual contexts.\" Id. at 2030 (Scalia, J.). He also\ndisagreed with Justice Stevens’ legislative history assessment. Id. at 2030 n.8. Justice Scalia\nthen, after noting that the holding of the case is necessarily limited by Justice Stevens’ opinion,\n\nid. at 2031 (citing Marlcs v. United States, 430 U.S. 188, 193 (l977)), offered his own\n\ninterpretation of the opinion’s stare decisis effect:\n\n21 ustice Alito, in dissent, noted that five Justices (Justice Stevens, and Justice Alito\nwriting for Chief Justice Roberts and Justices Kennedy and Breyer) agreed with this statement.\nSantos, 128 S. Ct. at 2035 and n.l (Alito, J., dissenting).\n\n4\n\n[T]he narrowness of [Justice Stevens’] ground consists of finding that \"proceeds\"\n\nmeans \"profits\" when there is no legislative history to the contrary. That is all that\n\nour judgment holds. It does not hold that the outcome is different when contrary\n\nlegislative history does exist. Justice STEVENS’ speculations on that point\n\naddress a case that is not before him, are the purest of dicta, and form no part of\n\ntoday’s holding.\n\nId. at 203 l.\n\nThe D.C. Circuit has not yet interpreted Santos’s enduring holding, and its sister Circuits\nare split on the issue.3 ln this situation, all that a District Court can do is read Sant0s and come to\nits own conclusion. This Court, having done that, does not reach the same conclusion Justice\nScalia did as to Santos’s holding. To this Court, it appears that when Justices Scalia’s and\nStevens’ opinions are read together, Santos defines \"proceeds\" as \"profits\" only in the context of\n\nan illegal gambling operation. lt does not mandate a definition in the context of defendant’s\n\nalleged unlawful activity (mail fraud). Accordingly, Santos does not suggest that the Court must\n\n3Some take Justice Scalia’s view. See, e.g., Unitecl States v. Hall, 549 F.3d 1033, 1042\n(6th Cir. 2008) (\"In June 2008, the Supreme Court [in Santos] . . . held that the term ‘proceeds’\nas used in 18 U.S.C. § 1956 refers to ‘profits,’ not ‘receipts’ of an illegal enterprise.\"); Unitea’\nStates v. Yusuf, 536 F.3d 178, 185 (3rd Cir. 2008) (\"[T]he Supreme Court, in United States v.\nSantos, recently clarified that the tenn ‘proceeds,’ as that term is used in the federal money\nlaundering statute, applies to criminal profits, not criminal receipts, derived from a specified\nunlawful activity.\"); United States v. Lazarenko, 546 F.3d 593, 605 (9th Cir. 2008) (“[Santos]\nconcluded that the term [‘proceeds’], left undefined in the statute, was ambiguous as to whether\nit meant ‘profits’ or ‘receipts,’ and so defined it in the more defendant-friendly terms of ‘profits,’\nbased on the rule of lenity.\"). Others are less certain. See, e.g., United States v. Levesque, 546\nF.3d 78, 82 (lst Cir. 2008) (\"ln Santos, the Court ruled, under the rule of lenity, that the term\n‘proceeds’ in the federal money-laundering statute . . . should be interpreted as ‘profits’ rather\nthan ‘receipts,’ at least when the predicate offense is an illegal lottery operation.\") (emphasis\nadded); Unitea’ States v. Brown, 553 F.3d 768, 785 (5th Cir. 2008) (\"[N]ot even after Santos is\nthe law ‘clear’ on what the prosecution should be required to prove as ‘proceeds’ in this\ncase . . . .\"); United States v. Howard, 2009 WL 205649 at *10 (4th Cir. Jan. 29, 2009)\n(unpublished opinion) (\"Because Santos does not establish a binding precedent that the tenn\n‘proceeds’ means ‘profits,’ except regarding an illegal gambling charge, we are bound by this\nCourt’s precedent establishing that ‘proceeds’ means ‘receipts.\"’).\n\n5\n\ndismiss Count Eight of the superseding indictment.\nThe Court cannot grant defendant’s motion [107] for acquittal on either of its theories,\n\nand the motion shall therefore be denied.\n\nB. Motion [114] to Dismiss Superseding Indictment as Violative of the Double\nJeopardy Clause\n\nIf a judge declares a mistrial without being compelled to do so by \"manifest necessity,\"\nthen retrying the defendant on the same charges would violate the Double Jeopardy Clause of the\nFif’th Amendment. See, e.g., United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).\nDefendant claims that his is such a case. Defendant argues that before declaring a mistrial, the\nCourt should have provided additional guidance on the legal issue of \"consent.\" Defendant also\nargues that the Court erred by declining to poll the foreperson or the jurors individually as to the\nextent to which the jury was deadlocked. The question presented by the motion, again, is\nwhether the Court’s declaration of a mistrial was supported by manifest necessity. The Court\nconcludes that it was and will therefore deny defendant’s motion to dismiss.\n\n1. United States v. Wecht Informs the Court ’s Consideration of T his Motion.\n\nSince the parties briefed this issue, the Third Circuit decided United States v. Wecht, 541\nF.3d 493 (3d Cir. Sept. 5, 2008), cert. deniea', 129 S. Ct. 658 (Dec. 1, 2008), a factually similar\ncase which sheds some light on the issue of manifest necessity and the breadth of the trial court’s\ndiscretion. Because of its applicability, it is discussed here at length before analysis of\ndefendant’s motion. Wecht was more complex than defendant’s case; it involved forty-one\n\ncounts of theft, wire fraud, and mail fraud and consumed twenty-three trial days before closing\n\narguments concluded. Id. at 495. After almost one-and-a-half weeks of jury deliberation, the\njury sent a note asking:\n\nOut of the 41 counts if any one or more count the jury cannot come to unanimous\nagreement on, does that constitute a hung jury?\n\nIa'. at 496. After consulting with counsel, the court sent a written response to the jury:\n\nThe answer to your question is \"no.\" It is your duty, as j urors, to consult with one\n\nanother, and to deliberate with a view to reaching an agreement if you can do so\n\nwithout violence to your individual judgment. Each of you must decide the case\n\nfor yourself, but do so only after an impartial consideration of the evidence in the\n\ncase with your fellow jurors. In the course of your deliberations, do not hesitate to\n\nre-exarnine your own views, and change your opinion, if convinced it is\n\nerroneous. But do not surrender your honest conviction as to the weight or effect\n\nof evidence solely because of the opinion of your fellow jurors, or for the mere\n\npurpose of retuming a verdict.\nId. Except for the first sentence, that text tracked verbatim the Third Circuit’s Model Criminal\nJury instruction 9.05 (\"Deadlocked Jury - Return for Deliberations\"). One week later, the jury\nsent another note:\n\nAfter considering all counts in a variety of ways and in reconsideration of all\n\nindividual opinions according to the court instructions_we have unanimously\n\nagree [sic] we have reached an impasse & respectfully request direction from the\n\ncourt. We agree additional deliberation would not be helpful.\nId. Upon reading this note, the court informed counsel that it \"was inclined to poll the jurors\nindividually to ask whether they were ‘hopelessly deadlocked’ and whether further deliberations\nwould lead to a unanimous verdict . . . .\" Id. The government requested an instruction clarifying\nthat partial verdict on any of the counts was a possibility. Id. Defendant Wecht supported an\nindividual poll. Id. The court proceeded with the individual poll, and each juror agreed that (l)\n\nthey were hopelessly deadlocked and (2) further deliberations would not lead to a unanimous\n\nverdict. The court then gave the full Model Criminal Jury instruction 9.05 and sent them back to\n\ncontinue deliberations.\n\nAfter the jury left, the government renewed its request that the court clarify for the jury\nthe possibility of a partial verdict. Ia'. at 497. Wecht objected and cross-moved for a mistrial on\nthe basis of the individual poll. Id. The court denied the government’s motion that day and\ndenied Wecht’s motion on the next day of deliberations. Id. The following day the court, having\nreceived another note from the jury announcing deadlock,\" declared a mistrial, Id. at 497-99.\nimmediately after doing so he asked the government whether it planned to retry the case; the\ngovernment indicated that it did, and the court set a trial date. Ia’. at 498.\n\nAfter the ruling, Wecht appealed to the Third Circuit seeking dismissal of the indictment.\nId. at 499. The court of appeals found that the trial judge \"did not follow the ideal set of\nprocedures.\" Id. at 501. The panel found that the trial judge did not follow Comment 9.06 to the\nModel instructions, which recommended that if the jury was still deadlocked after instruction\n9.05 was given in hill, the judge should (l) question the foreperson as to the extent of the\ndead1ock, (2) question each juror individually on the same issue, and then (3) consult with the\nparties outside the jury’s presence as to whether a mistrial should be declared. (The judge polled\nthe jurors and consulted with the parties before giving instruction 9.05.) The judge also failed to\n\nmake an explicit finding of \"manifest necessity\" before declaring a mistrial, as recommended in\n\n\"The text of the note was revealed after the declaration:\n\nPursuant to court instructions the jury contends we have exhausted all further\ndeliberation efforts. We agree unanimously that we are unable to reach a\nunanimous verdict_on all 41 counts and are essentially deadlocked in the case of\nUnited States of America vs. Cyril H. Wecht.\n\nIal. at 499.\n\nstep (3) of the Comment. Nonethe1ess, the panel concluded that because Comment 9.06 was\nonly a \"recommendation\" rather than a \"mandate,\" it could not be said that the trial judge\n\"violated\" the Comment. Id. at 502. But the panel found that the judge did violate Federal Rule\nof Criminal Procedure 26.3, which states that \"[b]efore ordering a mistrial, the court must give\neach defendant and the government an opportunity to comment on the propriety of the order, to\nstate whether that party consents or obj ects, and to suggest altematives.\" The trial judge\nconsulted with the parties before giving the full instruction 9.05~but not afierward. The Third\nCircuit held that to comply with Rule 26.3 the consultation must occur after the \"Deadlocked\nJurY’ instruction but before the declaration of a mistrial.\n\nHowever, the panel still concluded that dismissal of the indictment on double jeopardy\ngrounds would be improper. The main issue remained \"whether, under the substantive law\ngoverning mistrials, the indictment against Wecht must be dismissed because the District Court\nimproperly declared a mistrial.\" Id. at 504. The panel quoted the Supreme Court:\n\n[T]he trial judge’s belief that the jury is unable to reach a verdict [has] long [been]\nconsidered the classic basis for a proper mistrial, . . .\n\n. . . [T]here are especially compelling reasons for allowing the trial judge\nto exercise broad discretion in deciding whether or not \"manifest necessit)?’\njustifies a discharge of the jury. On the one hand, if he discharges the jury when\nfurther deliberations may produce a fair verdict, the defendant is deprived of his\n\"valued right to have his trial completed by a particular tribunal.\" But if he fails\nto discharge a jury which is unable to reach a verdict after protracted and\nexhausting deliberations, there exists a significant risk that a verdict may result\nfrom pressures inherent in the situation rather than the considered judgment of all\nthe jurors. if retrial of the defendant were barred whenever an appellate court\nviews the \"necessit}f’ for a mistrial differently from the trial judge, there would be\na danger that the latter, cognizant of the serious societal consequences of an\nerroneous ruling, would employ coercive means to break the apparent deadlock.\nSuch a rule would frustrate the public interest in just judgrnents.\n\nId. at 505-06 (quoting Arizona v. Washington, 434 U.S. 497, 509-10 (1978)).5 With this\ndiscretion in mind-lessened somewhat by the trial judge’s violation of Rule 26.3-the panel\nconsidered ten factors in turn:\n\n\"l. a timely objection by the defendant;\n\n2. the jury’s collective opinion that it cannot agree;\n\n3. the length of jury deliberations;\n\n4. the length of the trial;\n\n5. the complexity of the issues presented to the jury;\n\n6. any proper communications between the judge and jury;\n\n7. the effects of exhaustion and the impact of coercion of fiirther deliberations on\nthe J'HIY[;]\n\n8. whether the court provided counsel an opportunity to be heard;\n\n9. whether the court considered alternatives to a mistrial; and\n\n10. whether the court’s decision was made after adequate ref1ection.\"\nId. at 506 (quoting Comment 9.06 and various decisions from other Circuits). The Wecht panel\nconcluded that Factors (8), (9), and (10) harther decreased the deference to the trial judge in that\ncase, that Factors (l) and (7) did not weigh in that case, and that the remaining factors (2)-(6)\n(especially (2)) weighed in favor of the trial judge. Upon this analysis-with five factors\nweighing in favor of deferring to the trial court’s decision and three against-the panel concluded\nthat manifest necessity did compel the mistrial and denied Wecht’s motion to dismiss the\n\nindictment,\n\n5Much of this language has also been quoted by the D.C. Circuit in this context. See\nUnited States v. Glover, 731 F.2d 41, 46-47 (D.C. Cir. 1984).\n\n10\n\n2. Wecht-Style Analysis Does Not Reveal Error in This Case.\n\nAlthough Wecht is not binding precedent in this Circuit, it does represent a recent detailed\nand factually similar assessment of the issues at play in this case (and one for which the Supreme\nCourt has denied ceitiorari). And although this Circuit may not pick the exact same ten factors\nagainst which the Third Circuit measured the Wecht trial judge, they remain a fair approximation\nof the factors that might reasonably be considered. See, e.g., United States v. Ligon, 781 F. Supp.\n1, 6 (D.D.C. 1991, as am. 1992) (Gasch, J.) (citing Arnold v. McCarthy, 566 F.2d 1377, 1387\n(9th Cir. 1978)) (listing the same factors (l)-(7) as Wecht). Comparing this Court’s record to\nthat of the trial judge in Wecht, there can be no doubt that the Wecht panel-and an analogous\npanel within this Circuit-would likely conclude that this Court’s mistrial declaration was\nsupported by manifest necessity and thus not in error. in fact, as described below, it is not\nunlikely that a court of appeals would view nine of the ten Wecht factors as supporting this\nCourt’s decision to declare a mistrial.\n\nAt the outset, it should be noted that this Court complied with F ederal Rule of Criminal\nProcedure 26.3, which the Wecht panel chided its trial court for neglecting. After giving the\nThomas anti-deadlock instruction-roughly analogous to the Third Circuit’s instruction\n905-this Court consulted the parties regarding whether a mistrial should be declared (allowing\nthe defendant to make a timely obj ection). A spirited debate ensued, only after which did the\nCourt declare a mistrial. (See Def.’s Mot. [114] Ex. A (trial transcript from May 23, 2008).)\nAccordingly, a court of appeals would not only grant this Court more deference than did the\n\npanel in Wecht, but here factors (1), (8), (9), and (10) would favor this Court’s conclusion of\n\nll\n\nmanifest necessity (as was not the case in Wecht).\n\nFactors (3), (4), and (5) favor this Court no more-but no less_than they did the Wecht\njudge. The Wecht panel concluded that for a forty-one-count indictment and twenty-three trial\ndays, one and a half weeks was sufficient time for jury deliberation before a mistrial might be\ndeclared. Defendant’s case here was less complex, but the relative time-frames were roughly\ncommensurate. in defendant’s case, there was a nine-count superseding indictment and trial\nargument took eleven days. A mistrial was declared on the third day of j ury deliberations, These\nmetrics are not out of line from those in Wecht. Accordingly, as the Wecht panel considered\nfactors (3), (4), and (5) to favor the trial judge’s decision to declare a mistrial, it is likely that this\nCircuit would view those factors as supporting this Court’s decision.‘\n\nFactor (Z)-which weighed so heavily in the Wecht decision-favors this Court as well.\nAgain, factor (2) considers \"the jury’s collective opinion that it cannot agree.\" Here, defendant’s\njury unambiguously declared that it was hung on the second day of deliberations. As the District\nof Colurnbia’s model jury instructions recommend, the Court delivered the Thomas anti-deadlock\ninstruction and sent the jury back to continue deliberating. The jury retumed its second deadlock\nnote the next day. Defendant complains that the Court did not poll the foreperson or the jury as\nto the extent to which the jury was hung. But unlike the Third Circuit’s instructions in Wecht,\nthe District of Columbia’s Model Criminal Jury instructions do not have supplemental anti-\n\ndeadlock instructions analogous to the Third Circuit’s Comment 9.06 (which suggested such\n\n\"With regard to factor (5), the Court realizes that a comparison of the numbers of indicted\ncounts, trial days, and deliberation days are at best a rough and imprecise way to gauge \"the\nrelative complexity of the issues presented to the jury.\" However, there is no perfect way to do\nso, and this is the most economical comparative technique the Court has at its disposal.\n\n12\n\npolling).7 And even though the Wecht panel said that the trial court’s failure to poll was \"less\nthan ideal,\" it concluded that such a failure did not militate for reversa1. Wecht, 541 F.3d at\n501-02. The Court here opted against such polling (as well as against supplemental legal\ninstruction) because of the inherent risk of coercion. Not only do the D.C. model instructions\nindicate that that decision was defensible, but the decision would also likely gamer the support of\nWecht factor (7) (considering \"the effects of exhaustion and the impact of coercion of further\ndeliberations on the jury\").\n\nThe only factor that went in the Wecht judge’s favor but would likely not benefit this\nCourt is factor (6) (evaluating \"any proper communications between the judge and jury\"). The\nWecht panel cited the j udge’s pre-deadlock-instruction jury polling in concluding that this factor\nsupported the judge’s mistrial declaration. Although this Court did communicate with the jury\nextensively through notes, it did not poll jurors. As a result, the Court carmot conclude from\nWecht that a court of appeals would view factor (6) as weighing in this Court’s favor.\n\nWhen the ten factors are viewed together, however, it becomes clear that an appellate\n\npanel would likely deny a challenge to the Court’s mistrial declaration. Based on Wecht, nine of\n\n7in fact, the D.C. instructions are particularly attuned to the risk of coercion posed by such\nsupplemental communications:\n\nBecause of the potential for coercion inherent in any anti-deadlock instruction, the\n[D.C.] Court of Appeals has cautioned that an anti-deadlock charge generally\nshould only be delivered to a hung jury once. . . . Notwithstanding [that], a jury\ncan repeatedly be instructed on points of law and repeatedly be given non-\ncoercive instructions to resume its deliberations before an anti-deadlock\ninstruction is given.\n\nCriminal Jury instructions for the District of Colurnbia, 4th ed. rev. (Barbara Berginan, ed.), p.\n187 (instr. 2.91 cmt.) (citing Epperson v. United States, 495 A.2d 1170 (D.C. 1985)) (emphasis\nadded).\n\n13\n\nthe ten factors appear to favor the Court. Wecht endorsed the trial judge with only five of ten\npossible supporting factors, and there the panel’s deference to the trial judge was eroded by\nprocedural missteps not present in this case. This Court therefore concludes that Wecht strongly\n\nsuggests that defendant’s motion for acquittal should be denied.\n\n3. N0r Do Cases Cited By Defendant Reveal Error.\n\nNone of the cases cited by defendant convince the Court that, Wecht notwithstanding, its\ndeclaration of a mistrial was in error. To the contrary, the cases defendant cites are all quite\ndistinguishable from his situation.\n\nDefendant’s primary argument is that the Court erred in not providing supplemental\nclarifying instruction on the issue of consent. Defendants cites several cases in which\nconvictions were overturned for lack of clarifying instructions. (Def`.’s Mot. [114] at 7 (citing\nWrz'ght v. United States, 250 F.2d 4, ll-13 (D.C. Cir. 1957) (en banc) (insufficient instruction on\nthe issue of insanity) (\"Where . . . the need for more [instruction] appears, it is the duty of the\njudge to fill in the sketch, as may be appropriate on the basis of the evidence, to provide the jury\nwith light and guidance in the performance of its difficult task.\"); United States v. Bolden, 514\nF.2d 1301, 1308 (D.C. Cir. 1975) (insufficient instruction on intent) (“When the court refused to\ndo anything more than reread the statute and the standard instruction, despite cogent requests\nfrom the jury and both government and defense counsel, it could well have left the jury with the\nincorrect impression that coincidence was sufficient to convict.\")).). These cases are\nunconvincing for two related reasons. First, they deal with reversals of convictions, not with\n\nreversible error in the declaration of a mistrial. it is well established that the trial court has\n\n14\n\nsignificant discretion in determining whether manifest necessity compels a mistrial,g and\ndefendant has provided no rationale for why these conviction reversals should compel dismissal\nof an indictment following a mistrial.° Second, and moreover, even these cases recognize the\ndiscretion granted to the trial court in instructing the jury (as reflected in the quoted excerpts).\nThey stand for the principle that such discretion has its limits, not that failure to give a requested\ninstruction or clarification is always reversible error. in short, defendant has not established that\nthe Court lacked discretion to decline supplementary instruction on the issue of consent.\nDefendant also cites case law for the principle that a juror’s refusal to follow the law\n\nconstitutes good cause to dismiss that juror. (Def.’s Mot. at 8.) The Court accepts that\npremise-but in defendant’s case there was no clear refusal to follow the law. Defendant treats\nthe written statement of one juror complaining that \"[w]e [the jury] are not doing anything in\naccordance with evidence, testimony, instructions or otherwise\" (Notes From Jury [101] at 6) as\nclear evidence that jurors were not following the law. it is not as clear to the Court. in the\nCourt’s view that note was more an expression of frustration with the process, and as such it did\nnot necessitate additional instruction to the jury on its duty to follow the law. Faced with such\nweak and ambiguous evidence of j ury misconduct, the Court decided against providing\n\nsupplementary instruction and thereby risking coercive effect.\n\nSSee, e.g., United States v. Glover, 731 F.2d 41, 47 (D.C. Cir. 1984) (quoting Arz`zona v.\nWashington, 434 U.S. 497, 510 n.28 (1978)) (\"The reason for the great deference accorded a trial\ncourt’s declaration of mistrial in the deadlocked jury situation ‘is that the trial court is in the best\nposition to assess all the factors which must be considered in making a necessarily discretionary\ndetermination whether the jury will be able to reach a just verdict if it continues to deliberate.\"’).\n\n\"’At oral argument on Februaiy 25, 2009, defendant argued to the effect that \"the standard\nof reversal is the standard for dismissal.\" However, as defendant cited no legal support for this\nposition, the Court declines to adopt it.\n\n15\n\nBecause the Court did not exceed the bounds of its discretion in declining to give the\nsupplementary jury instructions requested by defendant, and because there was no convincing\nevidence of juror misconduct, the Court cannot grant defendant’s motion based on the cases\ncited. Therefore, because Wecht suggests that the Court’s trial conduct was proper and\ndefendant’s cited cases do not demonstrate otherwise, the Court shall deny defendant’s Motion\n\n[114].\n\nC. The Prosecutorial Misconduct Alleged in Motion [128] Does Not Rise to a Level\nJustifying Dismissal of the indictment or Preclusion of Khouj’s Future Testimony\n\nDefendant moves [128] to dismiss the indictment or, in the altemative, to preclude\ngovemment witness Abdullah Khouj from testifying in a retrial. Defendant argues that dismissal\nis the proper remedy for Khouj ’s allegedly false statements-allegedly made with the knowledge\nof the govemment-during defendant’s first trial. But defendant spends most of his time\ndescribing Khouj ’s alleged acts of perjury themselves and relatively little time on the more\nimportant issue of whether the govemment knew the statements were false when Khouj made\nthem. Defendant offers no legal support that dismissal, or preclusion of future testimony, is the\nproper remedy absent govemment knowledge of Khouj ’s peijury. And although dismissal of the\nindictment could be proper remedy for egregious actions by govemment prosecutors, the\ndefendant’s spotty allegations do not provide grounds for such extraordinary action by the Court.\nin the altemative, defendant alleges that Khouj obstructed justice by paying and secreting away a\npotential key witness for defendant during the original trial. Defendant argues that this\n\nobstruction provides grounds for precluding Khouj from testifying at any future retrial, but\n\n16\n\ndefendant offers no legal support for that position, Thus, as explained below, the Court will deny\n\ndefendant’s motion.\n\n1 . T he Claimed Govemment Knowledge of Khouj ’s Alleged Perjury Does Not Justijj)\nDismissing the Indictment\n\nDefendant prefaces his allegations of Khouj’s various allegedly perjurious statements by\ncontending that \"the Govemment knowingly grounded its prosecution on perjurious and false\naccusations.\" (Def.’s Mot. at l0.) But a careful reading of defendant’s allegations reveals only a\nfew claims of prosecutors’ actual or constructive knowledge of Khouj ’s perjuiy:l°\n\n' Khouj testified at trial that he had never heard of \"Blue Line Travel\"_a Darui entity to\nwhich some of the checks at issue were written_before August 23, 2006. (Mot. at 19.)\nDefendant claims that the govemment was in possession of pretrial evidence showing that\nKhouj engaged in transactions with Blue Line Travel on five instances between 2001 and\n2003. (Id. at 19~20.)\n\n' Khouj testified at trial that he had donated his islamic Center salary to charity in 2003 and\n2004. This was material because it bolstered the govemment’s argument that Khouj had\nsacrificed for the good of the Center. Defendant claims that the govemment had Khouj ’s\nbank records pre-trial, and that those bank records showed that the money he donated was\nnot in fact his salary. (Id. at 29~31.)\n\n' Khouj testified at trial that he gave two checks from the Saudi Embassy to defendant to\ndeposit in the \"Special Account\"_an Islamic Center account for which Khouj was the sole\nnamed account holder and signatory-and that Khouj did not know whether defendant had\ndeposited those checks. Defendant now claims that that testimony conflicted with Khouj ’s\npre-trial statements to the FBI and bank records in the govemment’s possession (which\ndefendant alleges indicate that the checks were deposited in Khouj ’s personal account).\n\n(Id. at 31-34.)\n\n'°Not listed in the text are defendant’s various weak inferences of govemment knowledge.\n\nF or example, defendant in several cases alleges that the govemment should have known that an\nelement of Khouj ’s testimony was false because it conflicted with evidence submitted by\ndefendant (See, e.g., Mot. at 26-29 (conceming a check made out to Aston James); Mot. at 15\nn.8, 38 (conceming Khouj’s relationship with Debbi Estrada).) Such weak allegations will not\nbe credited by the Court in this context.\n\n17\n\nAs defendant notes, govemment prosecutors have a duty to do justice. \"it is as much [the\nprosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction\nas it is to use every legitimate means to bring about a just one.\" Berger v. United States, 295\nU.S. 78, 88 (1935) (quoted in Mot. at 35). Defendant’s motion cites to United States v. Wallach,\n935 F.2d 445 (2d Cir. 1991), in which the court ordered a new trial for defendant based on \"(l)\nthe materiality of the govemment witness’s perjury to the verdict and (2) the extent to which the\nprosecution was aware of the perj ury.\" (Mot. at 36.) But even in Wallach, the remedy for such\nperjury was a new trial, not dismissal of the indictment. Defendant argues that Khouj ’s perjury\nwas more egregious than that in Wallach. However_even assuming defendant’s allegations are\ntrue-defendant’s motion cites to no case in which similar perjury (and govemment knowledge\nthereof) justified dismissal of the indictment. Similarly, defendant cited Napue v. Illinois, 360\nU.S. 264 (1959), in which a prosecutor’s failure to correct false testimony resulted in reversal of\nthe conviction (not dismissal of an indictment).\n\nDefendant’s Reply did provide a few Ninth Circuit cases indicating that dismissal of the\nindictment might be an appropriate remedy. F or exaniple:\n\nA district court may dismiss an indictment on the ground of outrageous\n\ngovemment conduct if the conduct amounts to a due process violation. if the\n\nconduct does not rise to the level of a due process violation, the court may\n\nnonetheless dismiss under its supervisory powers. These powers may be exercised\n\nfor three reasons: to remedy a constitutional or statutory violation; to protect\n\njudicial integrity by ensuring that a conviction rests on appropriate considerations\n\nvalidly before a jury; or to deter future illegal conduct.\n\nUnited States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991) (intemal citations\n\nomitted) (qu0ted in Def.’s Reply at 7). While this Court does not consider the isolated\n\n18\n\nallegations against the govemment to rise to the level of a due process violation,“ Barrero-\nMoreno does indicate that the Court’s supervisory powers might allow it to dismiss the\nindictment if, in the Court’s discretion, justice requires it. (See also Def.’s Reply at 8 (citing\nUnited States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1993) (giving the trial court the option on\nremand to \"dismiss the indictment with prejudice as a sanction for the government’s\nmisbehavior\"). However, defendant’s allegations do not convince this Court of the need for it to\nexercise its supervisory powers and dismiss the indictment.” Accordingly, defendant’s prayer\n\nthat the indictment be dismissed shall be denied.\n\n“'i`he Barrero-Moreno court explained that “[t]o violate due process, govemmental\nconduct must be so grossly shocking and so outrageous as to violate the universal sense of\njustice.\" Barrera-Moreno, 951 F.2d at 1092 (intemal citations and quotation marks omitted).\nDefendant has not shown the govemment’s conduct to rise to such a level.\n\n”That is not to say that the govemment’s conduct up until this point has been exemplary.\nThe govemment has at times demonstrated neglect. For example, during a status conference on\nSeptember 30, 2008, the govemment (AUSA Sharp) represented to the Court that it had not\ninterviewed Ms. Estrada. (Trans. at 6~7 (\"THE COURT: Has the govemment interviewed Ms.\nEstrada? MR. SHARP: No, we have not, Your Honor.\").) However, the FBI’s 302 interview\nsummary from September 25, 2008 indicates that the FBI agent investigating the case did speak\nwith a woman identified as Estrada only a few days prior to the hearing:\n\n[Fatima] GOODWiN[, Administrative Assistant for the islamic Center,]\n\nadvised [Estrada] that SA McGillicuddy was from the Federal Bureau of\n\ninvestigation (FBi) and wanted to ask [her] a few questions. GOODW]N then\n\nasked [Estrada] if she would answer questions for SA McGillicuddy. The woman\n\nresponded, \"No. is there anything else?\"\n\nSA McGillicuddy then asked [Estrada] if there was any place outside the\n\nCenter where she would feel more comfortable talking to him, [Estrada]\n\nresponded, \"No. i’ve seen the X-Files. i’ve watched it my whole life. 1 have\n\nnothing to say to the FBi.\"\nFBI 302 dated Sept. 25, 2008 (submitted to the Court on Feb. 25, 2009) at 1. The govemment\nshould have revealed this interaction in response to the Court’s question. But although the\ngovemment’s conduct has at times not been exemplary, it has also not, in the Court’s opinion,\nsunk anywhere near the point where dismissal pursuant to the Court’s supervisory powers would\nbe appropriate.\n\n19\n\n2. Khouj ’s Alleged Obstruction of Justice Does Not Justifi) Precluding Him F rom\nTestij)ing at Any Future Retrial.\n\nin the altemative, defendant argues that Khouj obstructed justice during the original trial\nand thus should be precluded from testifying in any future retrial. The first part of defendant’s\nobstruction claim is the ten alleged instances of Khouj ’s perjury at trial. (See Mot. at 11-34,\n41~42.) The second element is defendant’s allegation that Khouj paid potential witness Debbi\nEstrada to stay hidden in Virginia during the trial.“ Defendant credibly claims that Estrada’s\ntestimony would have benefitted him at trial. After spending several paragraphs arguing that\nKhouj should be indicted under 18 U.S.C. § 1503 for secreting Estrada-a matter not before the\nCourt-defendant fails to provide any legal support for his assertion that preclusion of future\ntestimony is appropriate here, even assuming his allegations against Khouj are true. Defendant\nonly argues that, if allowed to testify again, Khouj will again commit pe1jury. Without legal\nsupport for the requested remedy, the Court will not grant it.\n\nBecause the Court concludes that neither remedy requested by defendant is appropriate,\n\nthe Court shall deny Motion [128].\n\nD. Defendant’s Motion [142] Fails to Make Plain Allegations of Evidentiary\nMisconduct and Does Not Justify Dismissal of Indictment or Sanctions.\n\nDefendant’s fourth and final motion before the Court, Motion [142] for Dismissal of\nindictment and Sanctions, alleges evidentiary misconduct by the govemment. As explained\n\nabove in relation to the govemment’s alleged suboming of perjury, this Court will only dismiss\n\n\"The govemment states that its investigation does not support defendant’s allegation.\n\n20\n\nan indictment for govemment misconduct if the misconduct rises to the level of a due process\nviolation or the Court deems dismissal appropriate under its supervisory powers. it is clear that\ndefendant is attempting to claim of govemment misconduct, but the convoluted nature of the\nmotion leaves the Court unable to make out any specific claims. This is not to affirmatively state\nthat there was no evidentiary misconduct by the govemment, but rather that if there was,\ndefendant’s motion does not clearly identify it. Especially if he seeks to obtain extraordinary\nremedies such as dismissal of the indictment and sanctions against the government (as he does\nhere), defendant must clearly identify the alleged govemment misconduct. Defendant has not\n\ndone so. Defendant’s Motion [142] shall be denied.\n\nCONCLUSION\nAs described above, defendant has not justified a judgment of acquittal, dismissal of the\nindictment, or sanctions against the govemment. Accordingly, all four motions shall be denied.\n\nA separate Order shall issue this date.\n\nS/Z/Qj \n\nDATE ROYCE C. LAMBERTH\nCHIEF JUDGE\n\n21\n\n", "ocr": true, "opinion_id": 2668068 } ]

[ "666 So. 2d 887" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n666 So.2d 887 (1996)\nTHE FLORIDA BAR, Complainant,\nv.\nHarold George UHRIG, Respondent.\nNo. 84,495.\nSupreme Court of Florida.\nJanuary 18, 1996.\nJohn F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Carlos E. Torres, Bar Counsel, Orlando, for Complainant.\nHal Uhrig, pro se, Winter Park, Florida, for Respondent.\nPER CURIAM.\nHarold Uhrig petitions this Court to review the referee's findings and recommendations in a disciplinary proceeding. We have jurisdiction. Art. V, § 15, Fla. Const.\nThe Florida Bar filed a complaint against Uhrig after learning of an insulting and highly unprofessional letter he mailed to Dr. Carlos Carrera. A referee was timely appointed. The referee found the following facts.\nPrior to March 7, 1994, Uhrig undertook the representation of Maritza Torres. The *888 objective was to clarify Carrera's responsibilities related to child support. Torres had been married to Carrera. On April 14, 1991, Torres and Carrera had been granted a final divorce judgment in Massachusetts. The judgment provided that child support payments would be made by Carrera. On March 7, 1994, Uhrig wrote a five-page letter addressed to Carrera. The letter, along with a verified Petition to Domesticate Foreign Judgment and to Modify, was served on Carrera on March 24, 1994. Uhrig acknowledged that his letter caused Carrera to feel disparaged, humiliated, offended, disappointed, and angry. Based on these findings, the referee concluded that Carrera was a member of the class intended to be protected by rule 4-8.4(d) of the Rules Regulating the Florida Bar. Furthermore, the referee found that the contested letter was singularly directed to the humiliation, embarrassment, and disparagement of Carrera. Finally, the referee recommended that Uhrig be found guilty of violating rule 4-8.4(d).\nIn this review, Uhrig first raises jurisdictional issues. We find no merit in these arguments. The Florida Constitution makes it clear that this Court has total and exclusive jurisdiction over the discipline of attorneys in Florida. Art. V, § 15, Fla. Const.\nUhrig next challenges the applicability of rule 4-8.4(d) to his situation. We find his complaints unconvincing. Among other prohibitions, the rule requires that practitioners refrain from knowingly humiliating litigants on any basis whatsoever. While Uhrig may envision a parade of horribles that could ensue if this rule is enforced in future cases, he is unable to show any reason why his conduct does not fall squarely within the realm of prohibited behavior. While we easily see independent grounds upon which to find the letter humiliating and disparaging, we also note that Uhrig stipulated to the nature of the letter.\nWe find that Uhrig's letter to Carrera was devoid of any purpose other than humiliation and disparagement. The inclusion of an inflammatory simile comparing Carrera's opinions to body odor is illustrative of the letter's overall tone. Furthermore, the letter expressly rejects the prospect of settlement or further discussions; instead, Uhrig tells Carrera that all further proceedings will be in court. Predicated upon these facts, we agree with the referee's recommendation as to Uhrig's guilt.\nIn summary, we approve the referee's findings and the recommended discipline of a public reprimand. Accordingly, we direct Uhrig to appear before the Board of Governors of the Florida Bar for the public reprimand. Judgment for costs in the amount of $1,552.20 is entered in favor of the Florida Bar, for which sum let execution issue.\nIt is so ordered.\nGRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.\n", "ocr": false, "opinion_id": 1094904 } ]

[ "244 F.2d 895" ]

[ { "author_str": "Fee", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/244/244.F2d.895.15087.html", "author_id": null, "opinion_text": "244 F.2d 895\n SUN-MAID RAISIN GROWERS OF CALIFORNIA, Appellant,v.CALIFORNIA PACKING CORPORATION, Appellee.\n No. 15087.\n United States Court of Appeals Ninth Circuit.\n January 16, 1957.\n \n Boyken, Mohler & Wood, Gordon Wood, San Francisco, Cal., for appellant.\n Marshall P. Madison, James Michael, George A. Sears, San Francisco, Cal. (Pillsbury, Madison & Sutro), San Francisco, Cal., of counsel, for appellee.\n Before DENMAN, Chief Judge, FEE, Circuit Judge, and ROSS, District Judge.\n JAMES ALGER FEE, Circuit Judge.\n \n \n 1\n This is an appeal from an order dismissing without prejudice a motion by Sun-Maid Raisin Growers of California, a corporation (here appellant), to dissolve an injunction passed by the District Court of the Southern District of California on June 15, 1936. Thereby that corporation was enjoined, at the suit of California Packing Corporation (here appellee), from the use of the trade-mark \"Sun-Maid\" except on packages containing raisins and allied food products.\n \n \n 2\n The District Court filed a memorandum which stated as a reason for dismissal that the above mentioned decree was entered pursuant to the mandate of this Court and that proper deference to the authority of the latter requires that a \"proceeding to re-open it, whether by rehearing or review, should be first referred to that tribunal.\"\n \n \n 3\n In the briefs it was the position of appellee that the dismissal without prejudice for such a reason was not a final decision and not an appealable interlocutory order. Before appellant had proceeded far with oral argument before this panel, the court dismissed the appeal on the above grounds as set up in the brief of appellee.\n \n \n 4\n Appellant says in its brief that this proceeding may be treated as one to request permission to proceed in the District Court:\n \n \n 5\n \"It is defendant's [appellant's] contention here that no such prior permission is required under the facts of this case but this question may now have become moot because such permission is now hereby requested.\"\n \n Appellee says in its brief:\n \n 6\n \"This Court has jurisdiction to determine whether leave should be granted defendant to file in the district court its motion to dissolve the injunction entered pursuant to mandate of this Court.\"\n \n Appellee also says:\n \n 7\n \"If this appeal is to be treated as an application to this Court for leave to move for dissolution of the injunction in the district court, defendant has not made a prima facie showing of merit sufficient to warrant the granting of such leave * * *\"\n \n \n 8\n In the brief appellee strenuously argues this latter proposition. As a result, there is made a presentation of the merits of the motion, both by appellee and by appellant. This Court, at the time the appeal was dismissed, also granted permission to appellant to proceed in the District Court with a motion to modify the decree.\n \n \n 9\n There has been now filed a motion of appellee for permission to make an oral presentation of its theory that no sufficient grounds for granting permission are presented by appellant to the Court. This motion is denied.\n \n \n 10\n The merits of the entire controversy were argued in the briefs on both sides. It is not incumbent upon us to determine whether it was necessary for the District Court to defer to this Court and require appellant to seek permission before proceeding here. Appellant asked and was granted permission. It may well be that no permission was required, but the trial judge was well advised to avoid technical complications by requiring permission to be asked.\n \n \n 11\n As a practical matter, it would be futile for us to hear argument on the merits when the record does not advise us of the facts except sparsely and then send it back to the District Court for trial on the facts and subsequently, on appeal hear argument as to the correctness of the decision of that court.\n \n \n 12\n The record before this Court shows that the motion of appellant in the lower court alleges that appellee has abandoned, assigned and transferred the trade-mark which the previous decree of injunction of June 15, 1936, was to protect. A deposition indicates the document by which this alleged abondonment was accomplished was executed in 1950. Many years after the decree then, the events claimed to vitiate its effect occurred.\n \n \n 13\n The decrees of a court may be vitiated by subsequent events. The permission to proceed in the District Court does not indicate that this Court has or expresses any opinion on the merits or the validity or invalidity of the motion. The District Court is left free to take such action as is just and proper.\n \n \n 14\n The appeal is dismissed. Permission is granted to appellant to move against the decree of June 15, 1936, in the District Court. The motion of the appellee to present further argument is denied.\n \n ", "ocr": false, "opinion_id": 242350 } ]

[ "652 S.E.2d 111" ]

[ { "author_str": "Hassell", "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.courts.state.va.us/opinions/opnscvwp/1070137.pdf", "author_id": 5929, "opinion_text": "\n652 S.E.2d 111 (2007)\nJohn Allen JACKSON\nv.\nCOMMONWEALTH of Virginia.\nRecord No. 070137.\nSupreme Court of Virginia.\nNovember 2, 2007.\n*112 David D. Embrey, Lynchburg, for appellant.\nRichard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.\nPresent: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGVEE, JJ., and STEPHENSON, S.J.\nOPINION BY Chief Justice LEROY R. HASSELL, SR.\nIn this appeal of a judgment from the Court of Appeals, we consider whether the Commonwealth proved that the defendant violated Code § 18.2-266, a penal statute. This statute states in relevant part:\n\"It shall be unlawful for any person to drive or operate any motor vehicle, engine or train . . . (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.\"\nJohn Allen Jackson was convicted in the City of Lynchburg General District Court of driving under the influence of a narcotic drug in violation of Code § 18.2-266. He appealed the conviction to the Circuit Court of the City of Lynchburg, and he was convicted by the court sitting without a jury. The circuit court fixed his punishment at 30 days in jail and imposed a fine of $250, which were both suspended. The circuit court also suspended Jackson's driver's license for 12 months.\nThe Court of Appeals affirmed Jackson's conviction in an unpublished opinion. Jackson v. Commonwealth, Record No. 2120-06-3 (December 22, 2006). Jackson appeals.\nThe facts relevant for our disposition of this appeal are not in dispute. Jackson went to the emergency room at Lynchburg General Hospital between 3:00 and 4:00 a.m. on June 19, 2005, complaining of pain. After Jackson was examined by health care providers, a physician ordered that Jackson receive two milligrams of dilaudid and 25 milligrams of \"phenergen IM.\"\nDilaudid is a \"strong analgesic\" that is prescribed \"for severe pain.\" The phenergen was administered to prevent Jackson from becoming nauseous, which is a side effect of dilaudid. Dr. James Kuhlman, a forensic toxicologist who testified at trial, stated that:\n\"Dilautid [sic] is a central nervous system depressant. Its primary manifestation is sedation and [it is] a strong drug. It produces intense effects. Those type of side effects that you might expect to see would be someone who is sedated, lethargic, sleepy, slow reaction time, uncoordinated, probably disoriented. If they were walking and talking, [it is] possible that it could affect their balance and speech.\"\nA nurse at the hospital administered the dilaudid, which is a narcotic, to Jackson between 4:00 and 5:00 a.m. The nurse told Jackson that the medication would make him drowsy and asked Jackson if \"he had a ride home and he said that he did.\" The dosage of dilaudid that Jackson received probably affected him for about four hours.\nJackson was discharged from the emergency room after 7:00 a.m. on June 19, 2005. Sometime between the time of his discharge and 7:30 a.m., Jackson, who was driving a car, collided with a telephone pole. His car incurred significant damage. Jackson \"crawled\" out of the car, and he was transported to Lynchburg General Hospital for treatment. As a result of the accident, Jackson was charged with a violation of Code § 18.2-266(iii).\nJackson argued in the circuit court, the Court of Appeals, and he argues in this *113 Court, that as a matter of law, he did not violate Code § 18.2-266(iii). Jackson contends that this statute prohibits the operation of a motor vehicle only when the operator is under the influence of a narcotic drug that is self-administered. Jackson argues that even though the Commonwealth presented evidence that he was under the influence of a narcotic drug, Code § 18.2-266 requires that the narcotic be self-administered. Continuing, Jackson asserts that medical personnel administered the drug to him and, hence, the drug he received was not self-administered, and he did not violate the statute.\nResponding, the Commonwealth argues that Code § 18.2-266(iii) prohibits the operator of a motor vehicle from driving under the influence of a narcotic drug in two separate and distinct situations: \"first, the statute proscribes driving under the influence of `any narcotic drug,' self-administered or otherwise; second, driving under the influence of `self-administered intoxicant[s] and drug[s] of whatsoever nature.'\" We disagree with the Commonwealth's contentions.\nThe construction of a statute presents a question of law that we review de novo upon appeal. Robinson v. Commonwealth, 274 Va. 45, 51, 645 S.E.2d 470, 473 (2007); Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227, 229 (2007); Dowling v. Rowan, 270 Va. 510, 519, 621 S.E.2d 397, 401 (2005). When a court construes a penal statute, the court must not add to the words of that statute, nor ignore the statute's actual words, and the court must strictly construe the statute and limit its application to cases clearly within the scope of that statute. Robinson, 274 Va. at 51, 645 S.E.2d at 473; Farrakhan, 273 Va. at 181, 639 S.E.2d at 230; Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Also, \"every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.\" Robinson, 274 Va. at 51-52, 645 S.E.2d at 473 (quoting Hubbard v. Henrico Ltd. Partnership, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)); accord Sansom v. Board of Supervisors, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999); Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 405, 468 S.E.2d 905, 909 (1996); Raven Red Ash Coal Corp. v. Absher, 153 Va. 332, 335, 149 S.E. 541, 542 (1929).\nApplying these principles, we conclude that the circuit court and the Court of Appeals erred by holding that Jackson violated Code § 18.2-266. As we have already stated, this penal statute prohibits a person from operating a motor vehicle, engine, or train \"while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature.\" (Emphasis added). Applying the plain language of this statutory provision and principles of statutory construction, we must give meaning to the phrase \"under the influence of any narcotic drug or any other self-administered intoxicant or drug.\" We hold that the meaning of this phrase is clear: the narcotic drug that the operator of the motor vehicle is \"under the influence of\" must be self-administered. The phrase \"or any other self-administered intoxicant or drug\" modifies and places a limitation upon the phrase \"while such person is under the influence of any narcotic drug.\" Any other conclusion would render the statutory phrase \"or any other self-administered intoxicant or drug\" meaningless and superfluous.\nWe reject the Commonwealth's invitation that this Court ignore the phrase \"any other self-administered intoxicant or drug.\" This Court is not free to ignore language contained in a statute. Rather, it is the duty of this Court to apply the language in Code § 18.2-266(iii) that the General Assembly utilized. As we have often stated, without equivocation, \"we must assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words when we apply the statute.\" Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702, (2001); accord SIGNAL Corp. v. Keane Federal Systems, Inc., 265 Va. 38, 46-47, 574 S.E.2d 253, 257 (2003); Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).\nWe note that the Commonwealth's brief contains an extensive discussion of the history of Code § 18.2-266(iii) and its precursor statutes. That discussion, while interesting, *114 has no legal significance because this Court has a duty to apply the plain language contained in Code § 18.2-266(iii).\nFinding no merit in the Commonwealth's arguments, we will reverse the judgment of the Court of Appeals, and we will dismiss Jackson's conviction for violation of Code § 18.2-266.\nReversed and dismissed.\n", "ocr": false, "opinion_id": 1058575 } ]

[ "107 L. Ed. 2d 782", "110 S. Ct. 680", "493 U.S. 365", "1990 U.S. LEXIS 484" ]

[ { "author_str": "Blackmun", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 297, "opinion_text": "\n493 U.S. 365 (1990)\nGUIDRY\nv.\nSHEET METAL WORKERS NATIONAL PENSION FUND ET AL.\nNo. 88-1105.\nSupreme Court of United States.\nArgued November 29, 1989\nDecided January 17, 1990\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT\n*366 Eldon E. Silverman argued the cause for petitioner. With him on the briefs were Scott Gelman and Kenneth T. Eichel.\nJoseph M. Goldhammer argued the cause for respondents. With him on the brief were Walter C. Brauer III and Ellen M. Kelman.[*]\n*367 JUSTICE BLACKMUN delivered the opinion of the Court.[†]\nPetitioner Curtis Guidry pleaded guilty to embezzling funds from his union. The union obtained a judgment against him for $275,000. The District Court imposed a constructive trust on Guidry's pension benefits, and the United States Court of Appeals for the Tenth Circuit affirmed that judgment. Petitioner contends that the constructive trust violates the statutory prohibition on assignment or alienation of pension benefits imposed by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (1982 ed.)[1]\n\nI\nFrom 1964 to 1981, petitioner Guidry was the chief executive officer of respondent Sheet Metal Workers International Association, Local 9 (Union). From 1977 to 1981 he was also a trustee of respondent Sheet Metal Workers Local No. 9 Pension Fund. Petitioner's employment made him eligible to receive benefits from three union pension funds.[2]\nIn 1981, the Department of Labor reviewed the Union's internal accounting procedures. That review demonstrated that Guidry had embezzled substantial sums of money from the Union. See App. 20. This led to petitioner's resignation. A subsequent audit indicated that over $998,000 was missing. Id., at 26. In 1982, petitioner pleaded guilty to embezzling more than $377,000 from the Union, in violation of § 501(c) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 536, 29 U. S. C. § 501 *368 (c) (1982 ed.).[3] Petitioner began serving a prison sentence. In April 1984, while still incarcerated, petitioner filed a complaint against two of the plans in the United States District Court for the District of Colorado, alleging that the plans had wrongfully refused to pay him the benefits to which he was entitled.[4] The Union intervened, joined the third pension plan as a party, and asserted six claims against petitioner.[5] On the first five claims, petitioner and the Union stipulated to the entry of a $275,000 judgment in the Union's favor. App. 52-58. Petitioner and the Union agreed to litigate the availability of the constructive trust remedy requested in the sixth claim. Id., at 58.\nPetitioner previously had negotiated a settlement with the Local No. 9 Pension Fund. Id., at 44-46.[6] The other two *369 plans, however, contended that petitioner had forfeited his right to receive benefits as a result of his criminal misconduct. Id., at 47-50. In the alternative those plans contended that, if petitioner were found to have a right to benefits, those benefits should be paid to the Union rather than to Guidry. Ibid.\nThe District Court therefore was confronted with three different views regarding the disbursement of petitioner's pension benefits. Petitioner contended that the benefits should be paid to him. The two funds argued that the benefits had been forfeited. The Union asserted that the benefits had not been forfeited, but that a constructive trust should be imposed so that the benefits would be paid to the Union rather than to petitioner.\nThe District Court first rejected the funds' claim that petitioner had forfeited his right to benefits. 641 F. Supp. 360, 362 (Colo. 1986). The court relied on § 203(a) of ERISA, 29 U. S. C. § 1053(a) (1982 ed.), which declares that \"[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable\" if the employee meets the statutory age and years of service requirements. 641 F. Supp., at 361-362. The court noted other District Court and Court of Appeals decisions holding that pension benefits were not forfeitable even upon a showing of the covered employee's misconduct. Id., at 362.[7]\nThe court concluded, however, that the prohibition on assignment or alienation of pension benefits contained in ERISA's § 206(d)(1), 29 U. S. C. § 1056(d)(1) (1982 ed.), did not preclude the imposition of a constructive trust in favor of the Union. The court appeared to recognize that the anti-alienation provision generally prohibits the garnishment of pension benefits as a means of collecting a judgment. The *370 court, nevertheless, stated: \"ERISA must be read in pari materia with other important federal labor legislation.\" 641 F. Supp., at 362. In the Labor Management Relations Act, 1947, 61 Stat. 136, as amended, 29 U. S. C. § 141 et seq. (1982 ed.), and in the LMRDA, Congress sought to combat corruption on the part of union officials and to protect the interests of the membership. Viewing these statutes together with ERISA, the District Court concluded: \"In circumstances where the viability of a union and the members' pension plans was damaged by the knavery of a union official, a narrow exception to ERISA's anti-alienation provision is appropriate.\" 641 F. Supp., at 363. The court therefore ordered that benefits payable to petitioner from all three funds should be held in constructive trust until the Union's judgment and interest thereon were satisfied. Ibid.\nThe United States Court of Appeals for the Tenth Circuit affirmed. 856 F. 2d 1457 (1988). The court concluded that ERISA's anti-alienation provision could not be invoked to protect a dishonest pension plan fiduciary whose breach of duty injured the beneficiaries of the plan. The court deemed it \"extremely unlikely that Congress intended to ignore equitable principles by protecting individuals such as [petitioner] from the consequences of their misconduct.\" Id., at 1460. The court concluded that \"the district court's imposition of a constructive trust on [petitioner's] pension benefits both accorded with . . . principles of trust law and was well within its discretionary power as defined by the common law and ERISA.\" Id., at 1461.[8]\n*371 Because Courts of Appeals have expressed divergent views concerning the availability of exceptions to ERISA's anti-alienation provision,[9] we granted certiorari, 492 U. S. 904 (1989).\n\nII\nBoth the District Court and the Court of Appeals presumed that § 206(d)(1) of ERISA erects a general bar to the garnishment of pension benefits from plans covered by the Act. This Court, also, indicated as much, although in dictum, in Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 (1988). In Mackey the Court held that ERISA does not bar the garnishment of welfare (e. g., vacation) benefits. In reaching that conclusion, it noted that § 206 (d)(1) proscribes the assignment or alienation of pension plan benefits, but that no comparable provision applies to ERISA welfare benefit plans. Id., at 836. It reasoned that \"when Congress was adopting ERISA, it had before it a provision to bar the alienation or garnishment of ERISA plan benefits, and chose to impose that limitation only with respect to ERISA pension benefit plans, and not ERISA welfare benefit plans.\" Id., at 837 (emphasis in original). The view that the statutory restrictions on assignment or alienation of pension benefits apply to garnishment is consistent with applicable *372 administrative regulations,[10] with the relevant legislative history,[11] and with the views of other federal courts.[12] It is also consonant with other statutory provisions designed to safeguard retirement income.[13] We see no meaningful distinction between a writ of garnishment and the constructive trust remedy imposed in this case. That remedy is therefore prohibited by § 206(d)(1) unless some exception to the general statutory ban is applicable.\n\nA\nThe Court of Appeals, in holding that \"the district court's use of a constructive trust to redress breaches of ERISA was proper,\" 856 F. 2d, at 1460, indicated that an exception to the anti-alienation provision can be made when a pension plan fiduciary breaches a duty owed to the plan itself. The court *373 relied on § 409(a) of ERISA, 29 U. S. C. § 1109(a) (1982 ed.), which provides that a faithless pension plan fiduciary \"shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, . . . and shall be subject to such other equitable or remedial relief as the court may deem appropriate.\" 856 F. 2d, at 1459. We need not decide whether the remedial provisions contained in § 409(a) supersede the bar on alienation in § 206(d)(1), since petitioner has not been found to have breached any fiduciary duty to the pension plans. Respondents contend that, due to the nature of petitioner's scheme, there exists continuing uncertainty as to how much money was stolen from the Union and how much was taken from the pension funds.[14] It is clear, however, that petitioner was convicted of stealing money only from the Union. See n. 3, supra. Moreover, petitioner has negotiated a settlement with the fund of which he was a fiduciary, and only the Union has a judgment against him. Respondents' argument plays on the natural tendency to blur the distinctions between a fund and its related union (since an injury to either will hurt the union's membership). Respondents, however, cannot avoid the fact that the funds here and the Union are distinct legal entities. (Indeed, at an earlier stage of the litigation these parties took inconsistent positions: the funds argued that petitioner's benefits were subject to forfeiture, while the Union contended that petitioner retained his right to benefits but that the benefits should be placed in constructive trust). Although petitioner's actions may have harmed the Union's members who are the beneficiaries of *374 the funds, petitioner has not been found to have breached any duty to the plans themselves. In our view, therefore, the Court of Appeals erred in invoking § 409(a)'s remedial provisions.\n\nB\nRecognizing the problem with the Court of Appeals' approach, respondents, like the District Court, rely principally on the remedial provisions of the LMRDA. Section 501(a), 29 U. S. C. § 501(a) (1982ed.), of that Act states that a union's officers \"occupy positions of trust in relation to such organization and its members as a group\" and therefore have a duty \"to hold its money and property solely for the benefit of the organization and its members.\" Section 501(b), 29 U. S. C. § 501(b) (1982 ed.), provides, under certain conditions, a private right of action \"to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization.\"[15] We assume, without deciding, that the statutory provision for \"other appropriate relief\" may authorize, in some circumstances, the imposition of a constructive trust.[16] The question is whether that authorization may *375 override ERISA's prohibition on the alienation of pension benefits.\nRespondents point to § 514(d) of ERISA, 29 U. S. C. § 1144(d) (1982 ed.). It states: \"Nothing in this title shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States . . . or any rule or regulation issued under any such law.\" In respondents' view, application of ERISA's anti-alienation provision to preclude a remedy that would otherwise be available would \"modify, impair or supersede\" the LMRDA. We do not believe, however, that the LMRDA will be modified, impaired, or superseded by our refusal to allow ERISA pension plans to be used to effectuate the remedial goals of the LMRDA. Were we to accept respondents' position, ERISA's anti-alienation provision would be inapplicable whenever a judgment creditor relied on the remedial provisions of a federal statute. Such an approach would eviscerate the protections of § 206(d), and we decline to adopt so broad a reading of § 514(d).[17]\nIt is an elementary tenet of statutory construction that \"[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one . . . .\" Morton v. Mancari, 417 U. S. 535, 550-551 (1974). We do *376 not believe that congressional intent would be effectuated by reading the LMRDA's general reference to \"other appropriate relief\" as overriding an express, specific congressional directive that pension benefits not be subject to assignment or alienation. In our view, the two statutes are more persuasively reconciled by holding that the LMRDA determines what sort of judgment the aggrieved party may obtain, while ERISA governs the narrow question whether that judgment may be collected through a particular means — a constructive trust placed on the pension.\n\nC\nNor do we think it appropriate to approve any generalized equitable exception — either for employee malfeasance or for criminal misconduct — to ERISA's prohibition on the assignment or alienation of pension benefits. Section 206(d) reflects a considered congressional policy choice, a decision to safeguard a stream of income for pensioners (and their dependents, who may be, and perhaps usually are, blameless), even if that decision prevents others from securing relief for the wrongs done them. If exceptions to this policy are to be made, it is for Congress to undertake that task.[18]\nAs a general matter, courts should be loath to announce equitable exceptions to legislative requirements or prohibitions that are unqualified by the statutory text. The creation of such exceptions, in our view, would be especially problematic in the context of an antigarnishment provision. Such a provision acts, by definition, to hinder the collection of a lawful debt. A restriction on garnishment therefore can be defended only on the view that the effectuation of certain broad social policies sometimes takes precedence over the desire to do equity between particular parties. It makes little sense *377 to adopt such a policy and then to refuse enforcement whenever enforcement appears inequitable. A court attempting to carve out an exception that would not swallow the rule would be forced to determine whether application of the rule in particular circumstances would be \"especially\" inequitable. The impracticability of defining such a standard reinforces our conclusion that the identification of any exception should be left to Congress.\nUnderstandably, there may be a natural distaste for the result we reach here. The statute, however, is clear. In addition, as has been noted above, the malefactor often is not the only beneficiary of the pension.\nThe judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.[19]\nIt is so ordered.\nNOTES\n[*] Solicitor General Starr, Deputy Solicitor General Shapiro, Christopher J. Wright, Allen H. Feldman, Mary-Helen Mautner, and Ellen L. Beard filed a brief for the United States as amicus curiae urging reversal.\n[†] JUSTICE MARSHALL joins all but Part II-C of this opinion.\n[1] Section 206(d)(1), 29 U. S. C. § 1056(d)(1) (1982 ed.), of ERISA states: \"Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.\"\n[2] In addition to the Local No. 9 Pension Fund, petitioner was eligible to receive benefits from respondent Sheet Metal Workers National Pension Fund and from respondent Sheet Metal Workers Local Unions and Councils Pension Fund.\n[3] Section 501(c) provides: \"Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.\"\n[4] The complaint alleged that petitioner was eligible to receive benefits of $577 per month from the Sheet Metal Workers Local Unions and Councils Pension Fund, and $647.51 per month from the Sheet Metal Workers National Pension Fund. App. 5.\n[5] The first claim alleged that Guidry had breached his fiduciary duty to the Union in violation of § 501(a) of the LMRDA, 29 U. S. C. § 501(a) (1982 ed.). App. 32-33. The second through fifth claims asserted state commonlaw claims under theories of conversion, fraud, equitable restitution, and negligence. Id., at 33-35. The sixth claim, asserted against petitioner and the three pension funds, did not set forth a substantive ground for relief. Rather, it asserted that the District Court \"must restrain and enjoin the Pension Funds from paying any further pension benefits to Plaintiff Guidry until the completion of this action and thereafter until [the Union] is made whole for its losses.\" Id., at 35.\n[6] The parties stipulated that the Local No. 9 Pension Fund was holding $23,865 in accrued benefits for petitioner. Id., at 45. Under the settlement, the fund agreed to pay petitioner $3,865 in accrued benefits (the remaining $20,000 to go to the fund's insurer) and to resume monthly payments to petitioner as of June 1985. Id., at 46.\n[7] The District Court cited Fremont v. McGraw-Edison Co., 606 F. 2d 752 (CA7 1979), cert. denied, 445 U. S. 951 (1980); Winer v. Edison Brothers Stores Pension Plan, 593 F. 2d 307 (CA8 1979); and Vink v. SHV North America Holding Corp., 549 F. Supp. 268 (SDNY 1982).\n[8] In the alternative, petitioner contended that, even if ERISA did not bar the imposition of a constructive trust, 75% of his pension benefits should be exempt from garnishment pursuant to § 303 of the Consumer Credit Protection Act, 82 Stat. 163, as amended, 15 U. S. C. § 1673(a). The Court of Appeals rejected that argument on the ground that petitioner had failed to comply with the procedural requirements of the Colorado garnishment laws. 856 F. 2d, at 1463-1464.\n[9] Compare Ellis National Bank of Jacksonville v. Irving Trust Co., 786 F. 2d 466 (CA2 1986) (no exception to § 206(d)(1) to obtain relief for employee's criminal misconduct); United Metal Products Corp. v. National Bank of Detroit, 811 F. 2d 297 (CA6 1987) (same), cert. dism'd, 485 U. S. 1017 (1988), with St. Paul Fire & Marine Ins. Co. v. Cox, 752 F. 2d 550. 552 (CA11 1985) (\"[G]arnishment undertaken to satisfy liabilities arising from criminal misconduct toward an employer constitutes an exception to the non-alienability provisions of ERISA\"). See also Crawford v. La Boucherie Bernard Ltd., 259 U. S. App. D. C. 279, 815 F. 2d 117 (recognizing exception to anti-alienation provision when trustee defrauds the pension plan), cert. denied sub nom. Goldstein v. Crawford, 484 U. S. 943 (1987).\n[10] Treasury Department regulations state that for tax purposes \"a trust will not be qualified unless the plan of which the trust is a part provides that benefits provided under the plan may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process.\" 26 CFR § 1.401(a)-13(b)(1) (1989).\n[11] The anti-alienation provision permits \"any voluntary and revocable assignment of not to exceed 10 percent of any benefit payment.\" ERISA § 206(d)(2), 29 U. S. C. § 1056(d)(2) (1982 ed.). The Conference Report states: \"For purposes of this rule, a garnishment or levy is not to be considered a voluntary assignment.\" H. R. Conf. Rep. No. 93-1280, p. 280 (1974).\n[12] See, e. g., United Metal Products, supra; Ellis National Bank, supra; Tenneco Inc. v. First Virginia Bank of Tidewater, 698 F. 2d 688, 689-690 (CA4 1983). Even courts that have recognized equitable exceptions to the bar on alienation have assumed that § 206(d)(1) operates, as a general matter, to proscribe garnishment of pension benefits. See St. Paul Fire & Marine, 752 F. 2d, at 551-552; Crawford, 259 U. S. App. D. C., at 283-284, 815 F. 2d, at 121-122.\n[13] The garnishment of retirement benefits is prohibited by the Social Security Act, 49 Stat. 620, as amended, 42 U. S. C. § 407 (1982 ed.); the Railroad Retirement Act, as amended, 47 Stat. 438, 45 U. S. C. § 231m(a) (1982 ed., Supp. V); the Civil Service Retirement Act, 5 U. S. C. § 8346(a); and the Veterans' Benefits Act, 38 U. S. C. § 3101(a) (1982 ed.).\n[14] One of the ways in which petitioner embezzled was by stealing checks issued by the funds to the Union as payment for clerical services. At oral argument before the District Court, the Union's attorney stated: \"Nobody really decided yet whether some of this money was stolen from the union or the pension funds.\" 3 Record 19, App. to Pet. for Cert. C-13. Counsel also stated, however, that \"the trust funds through bonds and other sources of compensation don't have claims against Mr. Guidry anymore, and we do, the union does . . . . The way things shake out, we are holding the bag. We are the ones who lost the money . . . .\" Ibid.\n[15] Section 501(c), 29 U. S. C. § 501(c) (1982 ed.), under which petitioner was convicted, establishes criminal penalties for embezzlement or theft by a union officer or employee.\n[16] Section 501(b), 29 U. S. C. § 501(b) (1982 ed.), by its terms, does not establish a private right of action for a union itself. Rather, it provides that a suit may be brought in district court by a union member when a union officer is alleged to have breached his duties \"and the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization.\" That language certainly contemplates that a union may bring suit against its officers in some forum, but it does not expressly provide an independent basis for federal jurisdiction. Courts have reached inconsistent positions on the question whether a union may bring suit under § 501. Compare Building Material and Dump Truck Drivers, Local 420 v. Traweek, 867 F. 2d 500, 506-507 (CA9 1989) (no right of action), with Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees v. Orr, 95 LRRM 2701, 2702 (ED Tenn. 1977) (union has right of action to allege a violation of § 501). We need not resolve that question here. Rather, we assume, without deciding, that a union may invoke the remedial provisions of § 501(b).\n\nUncertainty as to the scope of § 501(b) does not call into question the subject-matter jurisdiction of this Court or of the District Court and the Court of Appeals. This suit properly was brought by petitioner under § 502 of ERISA to recover benefits allegedly due him under the pension plans. 29 U. S. C. §§ 1132(a)(1)(B) and 1132(e) (1982 ed.).\n[17] Indeed, the LMRDA has its own saving clause. Section 603(a), 29 U. S. C. § 523(a) (1982 ed.), provides that \"except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under [any] other Federal law or law of any State.\" This provision weighs against respondents' contention that the LMRDA's authorization of \"other appropriate relief\" supersedes ERISA's express proscription of any alienation or assignment of pension benefits.\n[18] See, for example, § 104(a) of the Retirement Equity Act of 1984, 98 Stat. 1433, 29 U. S. C. § 1056(d)(3) (1982 ed., Supp. V), where Congress mandated that the anti-alienation provision should not apply to a \"qualified domestic relations order.\"\n[19] In light of our disposition of petitioner's ERISA claim, we need not address his alternative claim under the Consumer Credit Protection Act.\n\n", "ocr": false, "opinion_id": 112353 } ]

[ "17 Cal. 2d 679" ]

[ { "author_str": "Curtis", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3801, "opinion_text": "\n17 Cal. 2d 679 (1941)\nLENA GROLEMUND, Appellant,\nv.\nEMILIO CAFFERATA et al., Respondents.\nS. F. No. 15958. \nSupreme Court of California. Department Two.-- \nMarch 28, 1941.\n Thomas D. Aitken for Appellant.\n Eugene H. O'Donnell, Julien R. Bauer and Albert A. Axelrod, as Amici Curiae, on Behalf of Appellant.\n Ernest I. Spiegl for Respondents.\n CURTIS, J.\n Lena Grolemund and Caesaer Grolemund, her husband, instituted this action against Emilio Cafferata and the respective sheriffs of the city and county of San Francisco and the county of San Mateo, for the purpose of procuring a permanent injunction restraining defendants from proceeding with the sale of certain personal property in San Francisco and certain real property in San Mateo County pursuant to executions issued on a judgment in favor of defendant Emilio Cafferata and others, as plaintiffs, and against plaintiff Caesaer Grolemund, as defendant. From a final judgment in favor of defendants, plaintiff Lena Grolemund appeals. *681\n The parties are in substantial agreement as to the facts forming the basis of this action and the significance of their chronological order, which we shall here detail: In 1926 plaintiffs acquired the leasehold interest and furniture of a 38 room rooming-house in San Francisco. Payment was made from funds which they had jointly accumulated, earnings of the husband commingled with separate funds of the wife. As various pieces of furniture therein became outworn and useless over the years, they were replaced with new furniture bought some time after the year 1927 with money received from operation of the rooming-house. In 1930 plaintiffs bought with commingled funds certain real property in the county of San Mateo.\n On April 17, 1935, Emilio Cafferata and others recovered a judgment in an action prosecuted in the Superior Court of San Francisco against Caesaer Grolemund because of damages sustained on August 6, 1933, in an automobile collision, wherein the defendant was adjudged negligent in the operation of his car. In accordance with executions issued by the trial court on April 18, 1935, for the satisfaction of this judgment, levies were made by the respective sheriffs of the city and county of San Francisco and of San Mateo County on the above-mentioned property of plaintiffs in these counties. On May 31, 1935, third party claims as to each of these properties were filed with the respective sheriffs, Lena Grolemund asserting ownership of the San Francisco personal property and one Herman Weibel asserting ownership of the realty in San Mateo County by virtue of a deed executed in his favor by plaintiffs, who received no consideration therefor. After hearing on a petition to determine title on June 13, 1935, the trial court in the above- mentioned tort action made its order declaring this real and personal property to be community property of Caesaer Grolemund, the judgment debtor, and Lena Grolemund, his wife.\n On July 2, 1935, plaintiffs filed in the present proceeding their first amended complaint, wherein, as basis for issuance of the desired injunction, appeared the following allegations: that this real and personal property was acquired by them subsequent to the year 1927 and their community ownership of it was declared by the court order of June 13, 1935; that the tort judgment was entered against Caesaer Grolemund alone; and that sheriff sales of these properties, held under *682 executions to satisfy this judgment, were impending. Thereupon, all proceedings in connection with the execution levies were stayed until sixty days after final disposition of the instant action. By their answer the defendants put in issue the character of the properties and the date of their acquisition. This action, being equitable in its nature, was tried by the court sitting without a jury, and resulted in a judgment in favor of defendants. From the findings of fact the court concluded that all of the plaintiffs' property involved herein was their community property, of which the personal property in San Francisco was acquired by the parties prior to 1927 and the real property in San Mateo County, having been purchased in 1930, had all the characteristics of community property acquired subsequent to 1927. Thereupon the court ordered the preliminary injunction dissolved and adjudged Emilio Cafferata entitled to levy execution upon the real and personal property described in plaintiffs' amended complaint and to continue with the sale of those properties, the proceeds to be applied upon the judgment against plaintiff Caesaer Grolemund.\n The principal question to be decided on this appeal is whether community property may be subjected to the satisfaction of a judgment against the husband for his tort. Fundamental to our determination of this basic issue is consideration of the change wrought in our community system by enactment in 1927 of section 161a of the Civil Code. The general rule that community property in California acquired prior to 1927, has always been held liable for the husband's debts (Cal.Jur. Supp., vol. 3, p. 663, sec. 146) was given unqualified recognition by this court in the celebrated case of Spreckels v. Spreckels, 116 Cal. 339, 343 [48 P. 228, 58 Am. St. Rep. 170, 36 L.R.A. 497], wherein it is stated that the creditor of the husband could, at his option, sell under execution either the husband's separate property or the community property. The rule announced in that case has never been departed from by any decision of this court to which our attention has been called. Appellant claims, however, that by virtue of the enactment in 1927 of section 161a of the Civil Code, the wife now has a vested interest in the community property, of which she cannot be deprived because of the debt of the husband alone. Respondents resist this contention as contrary to the statutes and prior decisions of the *683 courts of this state. Because of the emphasis placed by the parties on this enactment as it reflects on the instant issue, we shall consider first its effect upon the property of the Grolemunds acquired subsequent to the enactment of said section 161a.\n The evidence amply supports the trial court's conclusion that the real property in San Mateo County was acquired by the Grolemunds from commingled funds, \"the source and amount of which cannot be ascertained\" and \"that said property being purchased in 1930, has all the characteristics of community property acquired subsequent to 1927\". [1] As to the blending of separate and community property, the general rule is that the confusion of these, so that each is indistinguishable from the other, renders the mass community property for the reason that the separate owner is not able to establish his separate right to any article of the mass, nor prove his right to a computable share of it (McKay, Community Property, 2d ed., sec. 308, pp. 215, 216; Cal.Jur. Supp., vol. 3, p. 524, sec. 40), and the presumption in favor of community property applies so that it will all be community property (Civ. Code, sec. 164; Cal.Jur. Supp., vol. 3, p. 553, sec. 61). Since our analysis of the respective rights of the Grolemunds in this community real property must be governed by the law in force at the time of the acquisition in 1930, we shall refer briefly to relevant statutory provisions enacted prior to 1927, with which section 161a must be correlated.\n [2] Section 172 of the Civil Code, while it does not specifically create a liability or an exemption for any particular type of community property, gives to the husband \"the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate\". It reasonably follows from the express language above quoted that this section in effect subjects the entire community personalty (with the exception of the wife's earnings, Civ. Code, sec. 168) to any and all contracts of the husband, as well as to judgments arising out of his tort. Furthermore, since the only limitation upon the husband is to refrain from making a gift of such property without consideration, he is not prevented from paying it out in compromise or satisfaction of a *684 tort claim, for payment of a tort claim is not payment without consideration.\n [3] Section 172a of the Civil Code gives the husband \"the management and control of the community real property,\" subject to the proviso that in regard to conveyances the wife must join with him in executing the necessary instruments. Since this restriction concerns only voluntary transfers, it has no application to the instant case involving the satisfaction of a judgment by levy of execution, so that for all practical purposes herein the husband's power of management and control of the community real property involved here is as absolute and complete as it is with respect to community personal property, as outlined in section 172. That the addition in 1927 of section 161a, defining the interests of the spouses in community property, did not change the rule vesting in the husband the entire management and control of the community property is manifest by the express recognition accorded sections 172 and 172a in the later statute. (Cal.Jur. Supp., vol. 3, p. 608, sec. 98; Beemer v. Roher (1934), 137 Cal. App. 293 [30 PaCal.2d 547]; Hannah v. Swift (1932), 61 Fed.2d 307, 310.)\n [4] With reference to California legislation on the question of liability or exemption of property of the spouses for payment of obligations arising out of the husband's tort, the sole enactments are section 168, which exempts the wife's earnings (community property) from liability for debts of the husband, and section 171, which extends the same exemption in respect to the wife's separate property. It is significant to note that nothing is said in regard to the liability of the husband's separate property, the husband's earnings, or the balance of the community property (the wife's earnings excepted by Civ. Code, sec. 168) in regard to an obligation created by the husband's tort. From this silence of the legislature it logically can be inferred that it was thereby intended that the husband, as agent of the community, should retain the power to divest the parties of their community property by his own act in the same manner that he might divest himself of his separate property, so long as he did not make a gift of the former without consideration. To hold that the husband could not subject the community property to liability for his tort would be to hold that he could not manage and control the same. To illustrate, suppose that *685 the tort action had never been instituted by Emilio Cafferata and his co-plaintiffs, but that Caesaer Grolemund, after injuring these parties, had made a voluntary settlement of his liability. It cannot be said that the husband would be without power to use common funds to pay for the damages sustained by the injured persons because of his negligent act. Or let us suppose that the damage suit was brought and judgment had gone against Caesaer Grolemund, as here, but that no execution had been levied, it is obvious that the husband could satisfy such judgment voluntarily from a bank account under his control but which consisted of community funds. The foregoing analysis compels us to conclude that there is no logical distinction to be drawn between satisfaction of a judgment against the husband by levy of execution against the community property and satisfaction of a like judgment by the husband's voluntary payment from community funds. To hold otherwise would be to deny in toto the operation of sections 172 and 172a of the Civil Code, which would be contrary to the express terms of section 161a.\n In this connection it should be noted that the legislature by section 167 of the Civil Code specifically exempted the community property from liability for the contracts of the wife made after marriage. This section does not settle the question of liability of the community property for the torts of the wife. However, by enactment in 1913 of section 171a of the Civil Code it was provided: \"For civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be liable therefor, except in cases where he would be jointly liable with her if the marriage did not exist.\" This section was considered in Smedberg v. Bevilockway (1935), 7 Cal. App. 2d 578 [46 PaCal.2d 820], which appellant cites in support of her contention that the community property is exempt from liability for torts of either spouse, because by virtue of section 161a the husband and wife hold the title as an entirety.\n In the Smedberg case a judgment for damages had been recovered against the wife for personal injuries sustained through her negligence and upon her subsequent voluntary bankruptcy, the trustee sued the husband to establish a lien upon her one-half interest in the community property. The District Court of Appeal held that such a lien could not be so impressed, reasoning that no authority therefor could be *686 found in the absence of a showing that she had a right to a present, separate and divisible interest in such property as the result (1) of a voluntary agreement executed between the spouses, or (2) of divorce proceedings in which a division of community property was sought and obtained by the wife. Careful examination of the opinion in that case reveals that the court did not decide the precise question of whether the community property was liable for the wife's torts, since the plaintiff there, trustee in bankruptcy, did not seek to impress a lien upon all the community property but only the wife's interest therein. Though the court in the Smedberg case did not discuss the effect of section 161a, it reasonably can be inferred from that decision that the District Court of Appeal was of the opinion that section 161a of the Civil Code does not change the nature of the wife's interest to a vested one so as to give her creditors the right of sequestration by attachment, execution or any other legal proceeding. Otherwise, her half of the community property would have been subjected to a lien by the trustee in bankruptcy, for not only has he under the Bankruptcy Act the right of the bankrupt, but also the rights of the judgment and other creditors (Bankruptcy Act, sec. 47 (a) (2); 36 Stat. (1910) 838, 840; Remington, Bankruptcy (1923), sec. 1552; Noyes v. Bank of Italy (1939), 206 Cal. 266 [274 P. 68]). Furthermore, by this decision, the husband's power and right of management and control are preserved, for the opinion points out that since neither the husband nor the wife had taken steps toward a partition of the community property, so as to free the wife's interest from the management and control of the husband, she has no power to deal with her interest in any way, hence no power to that end was available to the trustee in bankruptcy. For the foregoing reasons, it is manifest that there is nothing in the Smedberg case inconsistent with respondents' contention that the community property is responsible in its entirety for the separate debts of the husband, whose right to control and manage such property as provided in sections 172 and 172a of the Civil Code stands unimpaired by section 161a.\n As lending additional support to their argument, respondents call attention to the enactment in 1931 of section 202 of the Probate Code, which provides, in part, that \"community property passing from the control of the husband, either by *687 reason of his death or by virtue of testamentary disposition by the wife, is subject to his debts and to administration ...\" This section is antagonistic to the construction appellant places on section 161a of the Civil Code, whereby she urges that the wife in 1927 was given a vested right in and to the community property, which no act of the husband could affect. Yet by section 202 of the Probate Code the legislature has made the entire community property subject to administration for the husband's debts, and from this premise respondents reason that if during life the husband may create an obligation which may be satisfied out of community funds after his death, it consistently should be said that that same obligation may be satisfied out of community funds during his life. The logic of this argument finds considerable support in a recent decision cited by respondents, Sampson v. Welch (1938), 23 Fed. Supp. 271, an action arising in the Federal Court for the Southern District of California on a matter of taxation, the question being whether certain portions of the community property belonged to the husband's estate or not. In its opinion, wherein it is clear from the lengthy discussion of the nature of the change which the adoption of section 161a effected in the wife's interest in community property in California, indicating that the court had this 1927 enactment emphatically brought before it, the following cogent language relative to the liability of the community property on administration of the husband's estate appears at page 281 of the opinion: \"Section 202 subjects all community property passing from the control of the husband by his death or otherwise to administration, to his debts, and to certain other charges. This is a provision more or less typical of the law in all community property states and should be construed as correlative to the principle that during the husband's life the community property is subject to his debts. Both are apparently corollaries to his right of management and control.\" (Italics ours.) To like effect, see Estate of Haselbud, 26 Cal. App. 2d 375, 383 [79 PaCal.2d 443]; Cal.Jur. Supp., vol. 3, pp. 688, 689, sec. 162. Thus, we have another illustration that the legislature did not intend by enactment of section 161a to alter the situation in regard to the husband's right of full management and control of the community property. *688\n Appellant advances the argument that the statutes of Washington and the statutes of California regarding community property are the same, and, therefore, the rules announced in decisions of the Washington courts interpreting their code sections should be followed here. This contention is singularly devoid of merit in view of the fact that the underlying theories of the community system in the two states are entirely distinct. The Washington statutes are based on the theory of tenancy by entireties, with its fundamental concept of \"community debts,\" and in that state the community property is not liable for the separate debts of the husband, much less of the wife, but is liable only for so-called \"community debts\". (Cal.Jur. Supp., vol. 3, p. 665, sec. 147, and cases there cited.) For example, in Sun Life Assur. Co. v. Outler, 172 Wash. 540 [20 PaCal.2d 1110], the Washington court said at page 544: \"The test of a community obligation is: 'Was the transaction carried on for the material benefit of the community?' \" Thus, in Washington where the system makes the community property responsible only for \"community debts\" or \"community liabilities,\" the community property cannot be reached for the individual tort of either the husband or wife. But in California there is no like concept of \"community debts,\" though occasionally the courts in this state refer to such, overlooking the fact that the phrase is not appropriate to the California system (Cal.Jur. Supp., vol. 3, p. 666, sec. 147). A complete reading of all our code sections on community property clearly demonstrates that our community system is based upon the principle that all debts which are not specifically made the obligation of the wife are grouped together as the obligations of the husband and the community property (with the single exception of the wife's earnings, which are exempted from certain types of debt, Civ. Code, sec. 168). This proposition was confirmed in Street v. Bertolone, 193 Cal. 751, 753 [226 P. 913]: \"The term 'the debts of the husband,' unless otherwise qualified, includes debts incurred by the husband for the benefit of the community as well as his own separate debts.\" Since in this state there is strictly no such thing as \"community debts\" in the sense in which they exist in Washington, the decisions of the latter state lose force as a precedent here.\n It would serve no useful purpose to extend this opinion with prolonged discussion of the many income tax and inheritance *689 tax authorities cited by appellant to uphold her theory. As example of these, we take occasion to make brief comment on the leading case of United States v. Malcolm, 282 U.S. 792 [51 S. Ct. 184, 75 L. Ed. 714], which expresses the prevailing view of the federal courts in its holding that the wife in California has such a present and vested interest in the community property that she may file a separate income tax return. We do not dispute the controlling effect of the rule announced in that decision on taxation questions involving like legal principles, but it has no bearing on the totally different situation presented here requiring determination of whether the wife's interest is such as will exclude the theory that the husband may manage and control, as well as create a liability against community property. (Sampson v. Welch, supra; Hirsch v. United States, 62 Fed.2d 128.)\n Likewise, there is no merit in appellant's emphasis on the comparable operation of the homestead and community property laws. True, by the express language of our code, the most important exemption from execution is that of the homestead (Civ. Code, secs. 1240, 1241), but in the absence of such a specific limitation in the community property statutes, we fail to see the analogy advanced by appellant. The point is too clear for extended discussion.\n [5] Since it is our opinion that the enactment of section 161a of the Civil Code, defining the interests of the spouses in community property, has not altered the situation with respect to the wife's interest remaining subject to the husband's power of management and control, all community property, whether acquired prior to or subsequent to July 29, 1927 (the effective date of this statute), is liable for satisfaction of the husband's debts. As the date of acquisition is immaterial here, the preceding discussion applies with equal force to the personal property in San Francisco purchased by the Grolemunds in 1926 and eliminates any necessity for separate treatment of that phase of this proceeding.\n Our conclusion in the instant case is not only in conformity with legal principles, but is consonant with practical considerations and public policy as well, for otherwise a person injured by the separate act of the husband would fail to gain redress for his damage in such case where the only property of the spouses is community. This obviously unfair and unjust result would have a disastrous effect on the very foundation *690 of our community system and would be entirely out of harmony with the general rule that the community property is liable for the husband's debts. The trial court properly held that respondents may proceed to levy execution upon both the community real and personal property of the Grolemunds, and sell the same in satisfaction of the tort judgment obtained against the husband alone.\n The judgment appealed from is accordingly affirmed.\n Traynor, J., and Shenk, J., concurred.\n", "ocr": false, "opinion_id": 1410421 } ]

[ "932 P.2d 1364", "188 Ariz. 93" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6198, "opinion_text": "\n188 Ariz. 93 (1997)\n932 P.2d 1364\nTerrilyn ESTES and Rick Estes, husband and wife, Plaintiffs-Appellants,\nv.\nRonald TRIPSON and Jane Doe Tripson, husband and wife, Defendants-Appellees.\nNo. 1 CA-CV 95-0408.\nCourt of Appeals of Arizona, Division 1, Department C.\nFebruary 25, 1997.\n*94 Robbins, Shumway & Foreman by G. Lynn Shumway, Phoenix, for Plaintiffs-Appellants.\nLewis and Roca, L.L.P. by Susan M. Freeman and Anthony J. Blackwell, Phoenix, for Defendants-Appellees.\nOPINION\nFIDEL, Presiding Judge.\nThis personal injury suit arises from an accidental injury in a company softball game. Plaintiff Terrilyn Estes was catching for one team; Defendant Ronald Tripson was running the bases for the other; as Tripson ran toward home plate, Estes awaited a throw to tag him out. Crossing the plate, Tripson stepped on Estes's outstretched leg, fracturing her tibia and fibula. Tripson did not slide or deliberately collide with Estes. Nor did he recklessly or intentionally step on her leg. Estes claims, however, that Tripson had the time and opportunity to avoid her leg and was negligent because he failed to do so.\nThe trial court awarded summary judgment to Tripson, finding that, even if Tripson was negligent, simple negligence is not actionable among participants in recreational sports. We affirm summary judgment for a different reason.\nSome authorities have held, as the trial court held, that only reckless or intentional torts are actionable among participants in sports. This approach, however, is constitutionally problematic in Arizona, as it is grounded, explicitly or implicitly, in a judicial application of assumption of risk as a dispositive negligence defense. See Mazzeo v. City of Sebastian, 550 So. 2d 1113, 1116 (Fla. 1989) (a voluntary participant in sports assumes certain risks inherent to that sport and relieves a co-participant of liability for injurious contact within those risks); Novak v. Lamar Ins. Co., 488 So. 2d 739, 740 (La. Ct. App. 1986) (\"A participant in a game or sport assumes all of the risks incidental to that particular activity which are obvious and foreseeable.\"); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 703-04 (1990) (participants in sports activities assume the ordinary risks of such activities including the negligence of co-participants).\nTo judicially apply assumption of risk as a dispositive defense in Arizona would violate article 18, section 5 of the Arizona Constitution, which provides:\nThe defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.[1]\nUnder article 18, section 5, the jury is \"sole arbiter of the existence or non-existence\" of contributory negligence and assumption of risk, and alone decides whether to apply those doctrines or not as it sees fit. Heimke *95 v. Munoz, 106 Ariz. 26, 28, 470 P.2d 107, 109 (1970); see Brannigan v. Raybuck, 136 Ariz. 513, 518, 667 P.2d 213, 218 (1983). It is constitutionally forbidden for Arizona courts to enter summary judgment for a defendant on the ground of assumption of risk. Brannigan, 136 Ariz. at 518, 667 P.2d at 218.\nSome courts have attempted, after adopting comparative negligence, to retain assumption of risk as a complete sports injury defense by recasting it as a no-duty rule. See Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, 706 (1992) (assumption of risk frames the duty of care owed by a participant in a sporting event); Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, 968 (1986) (assumption of risk is a measure of a fellow participant's duty of care).\nSuch a reformulation, however, would not escape the constitutional constraints of article 18, section 5. In Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990), our supreme court struck down a statute that attempted to relieve tavernkeepers of dram shop liability to persons who knowingly remain in the danger zone of an intoxicated tavern patron. The statute violated article 18, section 5 in attempting to establish contributory negligence or assumption of risk as a complete defense as a matter of law. Id. at 424, 793 P.2d at 1091. Further, the court held that it would not relieve this constitutional impediment to construe the statute as one that \"deals with the question of duty and simply declares that the tavernkeeper has no duty toward one who knowingly accompanies the patron.\" Id. A no-duty rule of that kind, according to the court, was merely a \"shorthand\" application of contributory negligence or assumption of risk. Id. The court explained:\nAssumption of the risk as a defense ... always \"rest[ed] upon the idea that the defendant [was] relieved of any duty toward the plaintiff.\" [W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 65, at 451 (5th ed. 1984).] The very basis of the doctrine was that the plaintiff had expressly or impliedly consented to the defendant's negligent conduct, \"the legal result [being] that the defendant is simply relieved of the duty which would otherwise exist.\" Id. at § 68, at 481.\nId.; see also RESTATEMENT (SECOND) OF TORTS § 496A, cmt. c (1965) (when a plaintiff is held to have assumed the risk by \"enter[ing] voluntarily into some relation with the defendant which he knows to involve the risk, ... the legal result is that the defendant is relieved of his duty to the plaintiff.\") According to Schwab, whether assumption of risk is asserted as a defense or recast as a no-duty rule, it remains subject to article 18, section 5. See Schwab, 164 Ariz. at 424, 793 P.2d at 1091.[2]\nThis does not mean, however, that we are constitutionally obliged to send this case forward to a jury. We may assume for the purpose of disposition that Tripson owed Estes the common duty \"to act reasonably in the light of foreseeable and unreasonable risks.\" Rogers v. Retrum, 170 Ariz. 399, 400, 825 P.2d 20, 21 (App. 1991). The question follows whether there is evidence from which a jury could reasonably conclude that Tripson violated such a duty. As we stated in Rogers:\nNot every foreseeable risk is an unreasonable risk. It does not suffice to establish liability to prove (a) that defendant owed plaintiff a duty of reasonable care; (b) that an act or omission of defendant was a contributing cause of injury to plaintiff; and (c) that the risk of injury should have been foreseeable to defendant. The question whether the risk was unreasonable remains.\n170 Ariz. at 402, 825 P.2d at 23.\nWhether a risk is unreasonable depends substantially on the context. In a recent softball injury case, the Supreme Court of New Jersey examined the context of *96 the risks that participants face in recreational sports:\nIn many recreational sports, softball included, some amount of physical contact is expected. Physical contact is an inherent or integral part of the game in many sports. The degree of physical contact allowed varies from sport to sport and even from one group of players to another. In addition, the physicality of sports is accompanied by a high level of emotional intensity [, which also varies] from sport to sport and from game to game.\nCrawn v. Campo, 136 N.J. 494, 643 A.2d 600, 605 (1994) (citations omitted).\nAccording to affidavits from the home plate umpire and an outfielder who observed the collision, Tripson ran the bases in an \"ordinary and typical\" manner. Estes does not claim otherwise. Nor does Estes assert that Tripson intentionally or recklessly stepped on her leg; nor does she contest the assertion by observers that Tripson attempted to avoid her leg. Estes asserts only that Tripson could have avoided her leg and that his failure to do so was negligent. We disagree.\nAlthough we ordinarily leave questions of negligence or unreasonable risk to juries to decide, the courts retain authority to set \"outer limits.\" Rogers, 170 Ariz. at 402, 825 P.2d at 23 (citation omitted). It is appropriate to do so here. There is no evidence that Tripson did anything as a baserunner to increase or exacerbate the inherent risks that Estes faced as a catcher in a softball game. As a baserunner intent on scoring, Tripson simply did not act negligently — did not breach a duty of reasonable care under the circumstances — in failing to perceive or make minute adjustments in his course that might have avoided contact with a catcher attempting to tag him out. To hold otherwise would unreasonably chill participation in recreational sports.\nThe summary judgment granted by the trial court is affirmed.\nSULT, J., concurs.\nLANKFORD, Judge, concurring.\nI concur with the majority. I write separately to state that, in my view, our opinion does not indicate that the Arizona Constitution prohibits the judiciary from either declaring whether a duty in tort exists or defining the extent of a duty. The fact that a duty question can be cast in the language of contributory negligence or assumption of risk does not necessarily mean that the constitution prevents the courts from answering the question.\nNor do I believe that Schwab v. Matley should be read so broadly. Schwab rested principally on an interpretation of a statute, holding that the legislation addressed contributory negligence rather than duty. 164 Ariz. at 424, 793 P.2d 1088. While the court also said that the legislature cannot \"abolish the recognized common law duties of care,\" id. at 425, 793 P.2d 1088, that proscription is found in another constitutional provision. See Art. 18, § 6. When the issue is not whether an historic duty at common law can be erased by legislation, but is instead whether the common law recognizes a duty, the constitution does not bar the courts from performing their basic function of declaring the law.\nNOTES\n[1] The legislature has placed the identical language in our comparative negligence statute, Ariz. Rev. Stat. Ann. § 12-2505(A) (Supp. 1996).\n[2] We agree, of course, with our concurring colleague that there is no constitutional constraint upon an Arizona court's general power to determine in a negligence action whether one party owed a duty to another. Schwab makes it plain, however, that a court may not escape the proscription of article 18, section 5 against declaring assumption of risk as a matter of law by reformulating assumption of risk as a no-duty rule.\n\n", "ocr": false, "opinion_id": 2613544 }, { "author_str": "Fidel", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION\nFIDEL, Presiding Judge.\nThis personal injury suit arises from an accidental injury in a company softball game. Plaintiff Terrilyn Estes was catching for one team; Defendant Ronald Tripson was running the bases for the other; as Tripson ran toward home plate, Estes awaited a throw to tag him out. Crossing the plate, Tripson stepped on Estes’s outstretched leg, fracturing her tibia and fibula. Tripson did not slide or deliberately collide with Estes. Nor did he recklessly or intentionally step on her leg. Estes claims, however, that Tripson had the time and opportunity to avoid her leg and was negligent because he failed to do so.\nThe trial court awarded summary judgment to Tripson, finding that, even if Tripson was negligent, simple negligence is not actionable among participants in recreational sports. We affirm summary judgment for a different reason.\nSome authorities have held, as the trial court held, that only reckless or intentional torts are actionable among participants in sports. This approach, however, is constitutionally problematic in Arizona, as it is grounded, explicitly or implicitly, in a judicial application of assumption of risk as a dispositive negligence defense. See Mazzeo v. City of Sebastian, 550 So.2d 1113, 1116 (Fla.1989) (a voluntary participant in sports assumes certain risks inherent to that sport and relieves a co-participant of liability for injurious contact within those risks); Novak v. Lamar Ins. Co., 488 So.2d 739, 740 (La.Ct.App.1986) (“A participant in a game or sport assumes all of the risks incidental to that particular activity which are obvious and foreseeable.”); Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699, 703-04 (1990) (participants in sports activities assume the ordinary risks of such activities including the negligence of co-participants).\nTo judicially apply assumption of risk as a dispositive defense in Arizona would violate article 18, section 5 of the Arizona Constitution, which provides:\nThe defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.1\nUnder article 18, section 5, the jury is “sole arbiter of the existence or non-existence” of contributory negligence and assumption of risk, and alone decides whether to apply those doctrines or not as it sees fit. Heimke *95v. Munoz, 106 Ariz. 26, 28, 470 P.2d 107, 109 (1970); see Brannigan v. Raybuck, 136 Ariz. 513, 518, 667 P.2d 213, 218 (1983). It is constitutionally forbidden for Arizona courts to enter summary judgment for a defendant on the ground of assumption of risk. Brannigan, 136 Ariz. at 518, 667 P.2d at 218.\nSome courts have attempted, after adopting comparative negligence, to retain assumption of risk as a complete sports injury defense by recasting it as a no-duty rule. See Knight v. Jewett, 3 Cal.4th 296, 11 Cal. Rptr.2d 2, 834 P.2d 696, 706 (1992) (assumption of risk frames the duty of care owed by a participant in a sporting event); Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, 968 (1986) (assumption of risk is a measure of a fellow participant’s duty of care).\nSuch a reformulation, however, would not escape the constitutional constraints of article 18, section 5. In Schwab v. Matley, 164 Ariz. 421, 793 P.2d 1088 (1990), our supreme court struck down a statute that attempted to relieve tavernkeepers of dram shop liability to persons who knowingly remain in the danger zone of an intoxicated tavern patron. The statute violated article 18, section 5 in attempting to establish contributory negligence or assumption of risk as a complete defense as a matter of law. Id. at 424, 793 P.2d at 1091. Further, the court held that it would not reheve this constitutional impediment to construe the statute as one that “deals with the question of duty and simply declares that the tavernkeeper has no duty toward one who knowingly accompanies the patron.” Id. A no-duty rule of that kind, according to the court, was merely a “shorthand” application of contributory negligence or assumption of risk. Id. The court explained:\nAssumption of the risk as a defense ... always “rest[ed] upon the idea that the defendant [was] relieved of any duty toward the plaintiff.” [W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 451 (5th ed.1984).] The very basis of the doctrine was that the plaintiff had expressly or impliedly consented to the defendant’s negligent conduct, “the legal result [being] that the defendant is simply relieved of the duty which would otherwise exist.” Id. at § 68, at 481.\nId.; see also Restatement (Second) of Torts § 496A, cmt. c (1965) (when a plaintiff is held to have assumed the risk by “entering] voluntarily into some relation with the defendant which he knows to involve the risk, ... the legal result is that the defendant is relieved of his duty to the plaintiff.”) According to Schwab, whether assumption of risk is asserted as a defense or recast as a no-duty rule, it remains subject to article 18, section 5. See Schwab, 164 Ariz. at 424, 793 P.2d at 1091.2\nThis does not mean, however, that we are constitutionally obliged to send this case forward to a jury. We may assume for the purpose of disposition that Tripson owed Estes the common duty “to act reasonably in the light of foreseeable and unreasonable risks.” Rogers v. Retrum, 170 Ariz. 399, 400, 825 P.2d 20, 21 (App.1991). The question follows whether there is evidence from which a jury could reasonably conclude that Trip-son violated such a duty. As we stated in Rogers:\nNot every foreseeable risk is an unreasonable risk. It does not suffice to establish liability to prove (a) that defendant owed plaintiff a duty of reasonable care; (b) that an act or omission of defendant was a contributing cause of injury to plaintiff; and (c) that the risk of injury should have been foreseeable to defendant. The question whether the risk was unreasonable remains.\n170 Ariz. at 402, 825 P.2d at 23.\nWhether a risk is unreasonable depends substantially on the context. In a recent softball injury ease, the Supreme Court of New Jersey examined the context of *96the risks that participants face in recreational sports:\nIn many recreational sports, softball included, some amount of physical contact is expected. Physical contact is an inherent or integral part of the game in many sports. The degree of physical contact allowed varies from sport to sport and even from one group of players to another. In addition, the physicality of sports is accompanied by a high level of emotional intensity [, which also varies] from sport to sport and from game to game.\nCrawn v. Campo, 136 N.J. 494, 643 A.2d 600, 605 (1994) (citations omitted).\nAccording to affidavits from the home plate umpire and an outfielder who observed the collision, Tripson ran the bases in an “ordinary and typical” manner. Estes does not claim otherwise. Nor does Estes assert that Tripson intentionally or recklessly stepped on her leg; nor does she contest the assertion by observers that Tripson attempted to avoid her leg. Estes asserts only that Tripson could have avoided her leg and that his failure to do so was negligent. We disagree.\nAlthough we ordinarily leave questions of negligence or unreasonable risk to juries to decide, the courts retain authority to set “outer limits.” Rogers, 170 Ariz. at 402, 825 P.2d at 23 (citation omitted). It is appropriate to do so here. There is no evidence that Tripson did anything as a base-runner to increase or exacerbate the inherent risks that Estes faced as a catcher in a softball game. As a baserunner intent on scoring, Tripson simply did not act negligently — did not breach a duty of reasonable care under the circumstances — in failing to perceive or make minute adjustments in his course that might have avoided contact with a catcher attempting to tag him out. To hold otherwise would unreasonably chill participation in recreational sports.\nThe summary judgment granted by the trial court is affirmed.\nSULT, J., concurs.\n\n. The legislature has placed the identical language in our comparative negligence statute, Ariz.Rev.Stat. Ann. § 12-2505(A) (Supp.1996).\n\n\n. We agree, of course, with our concurring colleague that there is no constitutional constraint upon an Arizona court’s general power to determine in a negligence action whether one party owed a duty to another. Schwab makes it plain, however, that a court may not escape the proscription of article 18, section 5 against declaring assumption of risk as a matter of law by reformulating assumption of risk as a no-duty rule.\n\n", "ocr": false, "opinion_id": 9792802 }, { "author_str": "Lankford", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLANKFORD, Judge,\nconcurring.\nI concur with the majority. I write separately to state that, in my view, our opinion does not indicate that the Arizona Constitution prohibits the judiciary from either declaring whether a duty in tort exists or defining the extent of a duty. The fact that a duty question can be east in the language of contributory negligence or assumption of risk does not necessarily mean that the constitution prevents the courts from answering the question.\nNor do I believe that Schwab v. Motley should be read so broadly. Schwab rested principally on an interpretation of a statute, holding that the legislation addressed contributory negligence rather than duty. 164 Ariz. at 424, 793 P.2d 1088. While the court also said that the legislature cannot “abolish the recognized common law duties of care,” id. at 425, 793 P.2d 1088, that proscription is found in another constitutional provision. See Art. 18, § 6. When the issue is not whether an historic duty at common law can be erased by legislation, but is instead whether the common law recognizes a duty, the constitution does not bar the courts from performing their basic function of declaring the law.\n", "ocr": false, "opinion_id": 9792803 } ]

[ "28 So. 3d 165" ]

[ { "author_str": "Cohen", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6859, "opinion_text": "\n28 So. 3d 165 (2010)\nJoseph J. WILKINS, Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 5D09-4175.\nDistrict Court of Appeal of Florida, Fifth District.\nFebruary 12, 2010.\nJoseph J. Wilkins, Milton, pro se.\nBill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.\nCOHEN, J.\nJoseph Wilkins appeals an order dismissing his motion to mitigate his sentence as untimely. We treat this appeal as a petition for writ of certiorari, see Eberheart v. State, 5 So. 3d 791 (Fla. 5th DCA 2009), grant the petition, and quash the order.\nWilkins was sentenced on August 6, 2009, to eighteen months in the Department of Corrections for cultivating cannabis and possession with intent to sell or deliver cannabis. Forty-nine days later, on September 24, 2009, Wilkins filed a motion to mitigate his sentence, alleging that he was amenable to supervision, this was his first felony conviction, the guidelines called for a non-prison sanction, the offense was committed in an unsophisticated manner, and was an isolated incident. The motion was file stamped by the clerk of the circuit court on September 28th, fifty-three days after Wilkins was sentenced.\nOn October 27, 2009, the circuit court entered an order dismissing Wilkins' motion because it believed it did not have jurisdiction to modify his sentence because \"more than sixty days have past (sic) since the imposition of the sentence.\" At the time of entry of the order, the trial judge did not have the benefit of our decision in Graham v. State, 24 So. 3d 781 (Fla. 5th DCA 2009), which is dispositive.\nAccordingly, we grant the petition for writ of certiorari and quash the order dismissing the motion to mitigate sentence.\nPETITION GRANTED; ORDER QUASHED.\nMONACO, C.J. and EVANDER, J., concur.\n", "ocr": false, "opinion_id": 1594955 } ]

[ "656 F.2d 1309" ]

[ { "author_str": "Poole", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/656/656.F2d.1309.79-4616.html", "author_id": null, "opinion_text": "656 F.2d 1309\n McDONNELL DOUGLAS CORPORATION, Appellee,v.COMMODORE BUSINESS MACHINES INC. and Commodore BusinessMachines (Canada) Limited, Appellants.\n No. 79-4616.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted May 13, 1981.Decided Aug. 31, 1981.\n \n John W. Clark, Trepel & Clark, San Jose, Cal., for appellants.\n Theodore Dunn, Huntington Beach, Cal., for appellee.\n Appeal from the United States District Court for the Northern District of California.\n Before GOODWIN and POOLE, Circuit Judges, and WYATT,* District Judge.\n POOLE, Circuit Judge:\n \n \n 1\n Commodore Business Machines (Commodore) appeals the judgment of the United States District Court for the Northern District of California, awarding plaintiff McDonnell Douglas the full $432,000 claimed in its breach of contract action, and denying Commodore's claim for a set off in the amount of $261,000. Commodore does not contest its liability for the balance of the debt.\n \n \n 2\n The dispute arose out of a contract between subsidiaries of the two parties. McDonnell Douglas' subsidiary, Nitron, supplied Commodore with semiconductors for use in electric calculators. The product supplied by Nitron was a wafer containing a number of individual chips. When Commodore received the wafers it sent them to Electronic Arrays, a subcontractor, where the wafers were tested and diced and the individual chips were packaged. The $261,000 at issue is the value of the approximately 319,000 chips that were rejected as defective during the Electronic Arrays packaging process from February, 1975 through June, 1976.\n \n \n 3\n Commodore introduced evidence that several months after the chips were rejected in its testing process, Commodore presented a debit memorandum for their value to Nitron. Commodore's then president testified that Nitron's executives requested that Commodore withdraw the memorandum because its adverse effect on Nitron's profit reports would likely induce McDonnell Douglas to cause Nitron to retire from the production of chips. Commodore had an interest in Nitron's continued participation in this industry because Nitron was its only supplier. For this reason, Commodore agreed to withdraw the memorandum. There was apparently some discussion about reconsidering the memorandum when Nitron was in better financial condition. However, Commodore does not contend that any representative of Nitron ever expressly stated that Commodore was entitled to any specific amount of credit. The matter appears to have been left for later agreement. Commodore contends that Nitron's failure to object at this time to the amount of the credit claimed constituted some sort of assent to liability in that amount. McDonnell Douglas later sold Nitron and disavowed any credit to Commodore for defective chips.\n \n \n 4\n Pursuant to the parties' stipulation waiving the right to trial by the court and consenting to trial before a magistrate, the case was referred to U.S. Magistrate Frederick J. Woelflen. At trial, Commodore based its claim for a set off to its contract liability on two theories: (1) that the goods rejected during the testing by Electronic Arrays were defective and therefore in breach of the contract warranty; and (2) that representatives of the parties agreed that Commodore would be entitled to set off $261,000 against sums due for future deliveries.\n \n \n 5\n The magistrate issued his first report on April 19, 1979. He found that the rejected dice had latent process defects, as required to trigger the warranty clause, and hence were in breach of the contract. He concluded that Commodore was liable to McDonnell Douglas in the amount of $432,000, subject to a set off in the amount of $261,000.\n \n \n 6\n McDonnell Douglas brought objections to this conclusion before the district court. Without further hearing and without stating any reasons beyond \"good cause,\" that court remanded the case to the magistrate for revised findings and conclusions.\n \n \n 7\n In his second report, the magistrate revised his earlier conclusion, holding (1) that Commodore had presented no evidence that Nitron had admitted that Commodore was entitled to a $261,000 credit, and (2) that Commodore had not satisfied its burden of proof as to the amount of the set off it claimed because there was no evidence showing that all of the rejected dice were latently defective. He therefore ruled that Commodore was liable for the full amount due under the contract, without set off.\n \n \n 8\n Commodore brought objections to the district court, and that court issued its own opinion in this case. Regarding the breach of warranty theory, the district court determined that Commodore had failed to make an effective rejection of the dice because several months elapsed between their delivery and presentation of the credit memorandum. Under the UCC, therefore, Commodore bore the burden of proof as to whether there had been a breach of warranty, and had failed to carry that burden. The only evidence supporting Commodore's position was the list of rejects from the Electronic Arrays testing, but testimony showed that those defects could have accrued after production. There was no evidence establishing which, if any, of the rejected dice suffered from latent process defects. On Commodore's second theory, the court again reviewed the evidence, which very clearly showed that no agreement was ever reached as to the amount of credit, if any, to which Commodore was entitled. In view of these findings, the court entered judgment against Commodore for the full $432,000. It is from this judgment that the present appeal is taken.\n \n \n 9\n * Commodore argues that the parties' stipulation waiving trial to the district court and consenting to trial by a United States magistrate had the effect of depriving the district court of the power to review the findings and recommendations of the magistrate. This theory must be rejected. In the first place, we seriously doubt that the form stipulation signed by the parties1 could reasonably be read as intending the extraordinary effect of ousting the district court of its power to review the magistrate's report. See also N.D.Cal.Loc.R. 405(k) and 410-2(b).\n \n \n 10\n More importantly, however, Commodore's claim is defective because it ascribes to the magistrate powers that he simply did not have when the judgment appealed from was entered. In 1976, Congress amended the Federal Magistrate Act, 28 U.S.C. § 631 et seq. Sections 636(a) and (b) described the powers of magistrates.2 Neither of these sections empowers magistrates to enter final judgments:\n \n \n 11\n In passing the 1976 amendments to the Federal Magistrates Act, Congress was alert to Art. III values concerning the vesting of decisionmaking power in magistrates. Accordingly, Congress made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter, the entire process takes place under the district court's total control and jurisdiction.\n \n \n 12\n United States v. Raddatz, 447 U.S. 667, 681, 100 S.Ct. 2406, 2415, 65 L.Ed.2d 424 (1980) (footnotes omitted). See also Mathews v. Weber, 423 U.S. 261, 269-72, 96 S.Ct. 549, 553-55, 46 L.Ed.2d 483 (1976) (\"A district judge would retain ultimate responsibility for decisionmaking in every instance in which a magistrate might exercise additional duties jurisdiction.\")\n \n \n 13\n Thus, it is quite clear that any action taken by the magistrate was taken subject to the \"inherent supervisory power of the district judge.\" Harding v. Kurco, Inc., 603 F.2d 813, 814 (10th Cir.1979). In reviewing the magistrate's report, the district judge did no more nor less than fulfill his statutory and Constitutional responsibilities. And no agreement between the parties could have altered this state of affairs: the parties could not, by consent, invest greater powers in the magistrate than Congress had seen fit to vouchsafe him. See Taylor v. Oxford, 575 F.2d 152, 154-55 (7th Cir.1978).II\n \n \n 14\n Commodore also contends that the district court's review of the magistrate's first report was defective because it was required to but did not hear all of the evidence itself before acting on the case. This argument is based on United States v. Bergera, 512 F.2d 391 (9th Cir.1975), in which the court held that protection of the integrity of the fact finding process requires that, before the district court may enter a judgment that disregards the recommendation of a magistrate who has heard all of the evidence, the district court must itself rehear all of that evidence. Id. at 393-94.\n \n \n 15\n Commodore maintains that Bergera governs this case because remand is tantamount to reversal. We cannot agree. The district court did not substitute its judgment for that of the magistrate on questions of witness credibility and weight of the evidence, and it did not adopt findings that differed from those presented by the magistrate. Rather, when it determined that the first report was deficient in some undisclosed respect, it called upon the magistrate who had heard the evidence to reconsider his conclusions. The integrity of the fact finding process was in no way implicated in this proceeding; indeed, the district court followed a course of action well calculated to protect it. It would be a most inefficient practice to compel a district court to hear all of the evidence itself before remanding to the magistrate, and we decline to mandate such a practice.\n \n III\n \n 16\n Finally, Commodore argues that the district court's review of the magistrate's first report was deficient because it applied an incorrect standard of review. Relying on Fed.R.Civ.P. 52(a), Commodore contends that the district court could not overturn the magistrate's original findings of fact unless they were clearly erroneous. This argument is without merit for reasons given above: the district court did not overturn the magistrate's findings of fact when it remanded the case for reconsideration.\n \n \n 17\n In any case, Fed.R.Civ.P. 52(a) does not state the standard of review that a district court must apply when it considers a magistrate's findings and recommendations. That standard is provided in the Magistrates Act, 28 U.S.C. § 636(b). Although the statute calls for application of the clearly erroneous standard when a district court reviews the magistrate's report on certain pretrial, nondispositive motions, in all other cases, the statute grants the broadest possible discretion to the reviewing district court. When either party objects to any portion of the magistrate's report, the district court is charged to make a de novo determination of that portion. The court may \"accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.\" 28 U.S.C. § 636(b). There can be no doubt whatsoever that the district court in this case acted well within the mandate of this statute when it remanded the case for further consideration by the magistrate.\n \n \n 18\n Commodore thus has presented no meritorious arguments for reversal of the judgment entered in this case. Accordingly, that judgment is AFFIRMED.\n \n \n \n *\n Honorable Inzer B. Wyatt, Senior United States District Judge for the District of New York, sitting by designation\n \n \n 1\n The stipulation form provided by the Northern District of California read as follows:\n The undersigned counsel being fully aware of the right to trial of the captioned proceeding before a Judge of the United States District Court for this District, and in behalf of their clients, do hereby specifically waive trial before the District Judge and consent to jury__ court xx trial before United States Magistrate Frederick J. Woelflen.\n \n \n 2\n The relevant portions of the statute after the 1976 amendments were:\n § 636. Jurisdiction, powers, and temporary assignment.\n (a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment\n (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts;\n (2) the power to administer oaths and affirmations, impose conditions of release under section 3146 of title 18, and take acknowledgments, affidavits, and depositions; and\n (3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section.\n (b)(1) Notwithstanding any provision of law to the contrary\n (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.\n (B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.\n (C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.\n Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.\n (3) A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.\n An October 10, 1979 amendment to this Act provides that upon consent of the parties and special designation by the district court, a magistrate may enter a civil judgment that is appealable directly to the United States Court of Appeals. 28 U.S.C. § 636(c), as amended by Act of Oct. 10, 1979, Pub. L. No. 96-82, 93 Stat. 643. This amendment was enacted after the judgment here on appeal had been entered in the district court, and therefore has no bearing on this case.\n \n \n ", "ocr": false, "opinion_id": 393286 } ]

[ "829 F. Supp. 340" ]

[ { "author_str": "Finesilver", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n829 F. Supp. 340 (1993)\nThe CITY AND COUNTY OF DENVER, et al., Plaintiffs,\nv.\nADOLPH COORS COMPANY, et al., Defendants.\nCiv. A. No. 91-F-2233.\nUnited States District Court, D. Colorado.\nFebruary 24, 1993.\n*341 Daniel E. Muse, T. Shaun Sullivan, Steven J. Coon, Asst. City Attys., Russell E. Yates, Carolyn L. Buchholz, Katherine L. Letson, Patton, Boggs & Blow, P.C., Robert S. Treece, Daniel S. Maus, Treece, Alfrey & Musat, P.C., Denver, CO, P.B. (\"Lynn\") Walker, Region Environmental Counsel, Englewood, CO, for plaintiffs.\nJohn R. Jacus, Russell Carparelli, Bradley, Campbell, Carney & Madsen, Golden, CO, Monte Pascoe, Tucker K. Trautman, Margaret Toal-Rossi, Ireland, Stapleton, Pryor & Pascoe, Elizabeth H. Temkin, Mark J. Gilbert, Ballard, Spahr, Andrews & Ingersoll, Steven J. Dawes, Cheryl A. Martin, Greengard Senter Goldfarb & Rice, Timothy R. Gablehouse, Gablehouse, Epel and Babich, John D. Faught, Randy L. Sego, John Faught & Associates, Thomas C. Reeve, Bennington and Reeve, P.C., Philip E. Johnson, Neil McClain, Dona V. Maloy, Mosley, Wells, Johnson & Ruttum, P.C., Robert T. McAllister, Kathryn Haight Meyer, Martin McAllister & Murphy, P.C., Denise S. Maes, Steven G. Barringer, A. Bruce Jones, Holland and Hart, John W. Madden, III, Susan Fuller, Madden & Associates, William R. Marsh, Marilyn S. Chappell, McKenna & Cunio, Louis Marucheau, AMAX Research & Development, Inc., Golden, CO, Arthur H. Bosworth, II, Cathy A. Klein, Bosworth & Kelly, P.C., Hugh Q. Gottschalk, Elizabeth Savage, Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Joel W. Cantrick, Pendleton & Sabian, P.C., Denver, CO, for defendants.\n\nORDER REGARDING APPROVAL OF SETTLEMENTS: 1993-5\nSHERMAN G. FINESILVER, Chief Judge.\nThis is a case involving environmental contamination at the Lowry Landfill Site (\"Lowry\" or \"the Site\"), operated at various times by Plaintiffs City and County of Denver (\"Denver\"), Waste Management of Colorado, Inc. (\"WMC\"), and Chemical Waste Management, Inc. (\"CWM\"). This matter comes before the Court on Plaintiffs' Motion for Approval of Settlements, filed October 20, 1992. Jurisdiction is based upon 28 U.S.C.A. § 1331 and 42 U.S.C.A. §§ 9601 and 9607. The litigants have fully briefed the issues. For the reasons stated below, the motion is GRANTED in PART.\n\nI. Background\nLowry, located 20 miles southeast of Denver, was listed on the CERCLA National Priorities List (\"NPL\") on September 21, 1984, as a hazardous waste site. 49 Fed.Reg. 37,070 (1984). Plaintiffs, all current or former operators of Lowry, seek damages from numerous alleged generators and transporters of the hazardous waste under sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (\"CERCLA\" or \"Superfund\"). 42 U.S.C.A. §§ 9601 et seq. (West 1983 & Supp. 1992). Plaintiff Denver also alleges certain common law causes of action.\nThe Lowry Landfill was owned and operated by the United States beginning in the early 1940s. On July 15, 1964, the United States conveyed the site to Denver by quitclaim deed with the condition that the site be used as a landfill at least until 1984. Denver operated the site from 1964 to 1980 as a regional industrial and municipal waste site.\nOn July 7, 1980, CWM executed a contract with Denver to operate the site and WMC operated the site from August 12, 1980 until August 3, 1990. Denver, CWM, and WMC *342 claim that they have incurred and will continue to incur response, cleanup, and remediation costs. Defendants are entities alleged to be either generators or transporters of hazardous wastes to Lowry. Most defendants have been identified by the Environmental Protection Agency (\"EPA\") as potentially-responsible parties (\"PRPs\") at the Lowry Landfill site pursuant to 42 U.S.C.A. § 9607(a) (West 1983 & Supp.1992).\nFollowing years of failure by the Environmental Protection Agency (\"the EPA\") to effectuate settlement with Lowry PRPs, Plaintiffs diligently worked out settlements with 119 PRPs totalling over 24 million dollars. In the motion before the Court, Plaintiffs have applied for an order (1) approving the settlements, (2) barring claims against the settlors for contribution or response costs, except as provided for in the settlement agreements (\"the Agreements\"), and (3) declaring that the nonsettlor's share of liability is reduced by the amount paid by the settlors for their volumetric share of the remedial costs at the Site.\nThe settlements executed by Plaintiffs fall into three categories: de minimis, mid-tier, and one agreement with John Todd, Inc. based on the corporation's inability to pay. A de minimis PRP had to meet the same four criteria as required in the EPA's de minimis settlements: (1) the PRP's § 104(e) response was adequate and complete; (2) the PRP's volumetric contribution of waste was 300,000 gallons or less; (3) the PRP was not involved in any litigation against EPA concerning the Site; and (4) the PRP's waste stream was not significantly more toxic or of greater hazardous effect than other waste streams at the Site. Defendants who failed to qualify for de minimis status were classified as either mid-tier or high-tier, depending upon their volumetric contribution.\nEach of the settlements contained up to five key components. The first component is the estimated cost of the remedy. An estimated cost of the remedy was agreed to by the parties for purposes of negotiations and then reduced by 20 percent to account for Plaintiffs' share of the remedial costs. The estimated cost of the remedy used in the de minimis agreements — $500 million — was greater than that for the mid-tier agreements — $310 million — because the mid-tier settlements anticipate a remedial cost reopener that potentially subjects mid-tier settlors to greater liability. All settlements were based on an estimated cost of the remedy greater than the estimate offered by the nonsettling defendants. Therefore, the settlors paid a greater amount — and the nonsettlors will be credited a greater amount — than if the nonsettlors' estimate had been used.\nThe second and most important component represents the settlors' volumetric contribution of waste containing hazardous substances at the Site. To determine a PRP's volumetric contribution of waste to the Site, the parties relied on a thorough and continually updated EPA study entitled \"Protocols for Identifying and Determining Volumetric Contribution for Lowry Landfill (§ 6).\" Each settlor's volumetric waste contribution taken as a percentage of all waste at Lowry was then multiplied by the total estimated cost of the remedy (less Plaintiffs' 20 percent) to arrive at the settlor's estimated share of the remedy.\nThe third component, for de minimis settlements only, is a cost overrun premium paid by settlors in addition to the payment for their volumetric share. The cost overrun premium allows parties to settle with finality their liability at the Site without regard to cost overruns. In exchange for bearing the risk of cost overruns, Plaintiffs are protected against unanticipated increases in the cost of the remedy based on regulatory and other changes. The mid-tier settlement equivalent of the third component, due to the larger payments involved, is a reopener clause that allows the parties to revisit the Agreements in the event the actual cost of remedy exceeds the estimated cost.\nThe fourth component of some settlements was for optional premiums the settlor could pay in consideration for Plaintiffs' agreement to assume certain additional obligations, most of which are unrelated to response costs or other cleanup of the Site. The greater the assumed obligation premium a settlor was willing to pay, the more potential future obligations of the settlor Plaintiffs were willing *343 to assume. The optional assumed obligation premium was also offered to the settlors in order to afford greater finality in the liability associated with Site litigation.[1]\nThe fifth and final component consists of two separate provisions regarding the parties' attempts to address both the uncertainty of current information and the inability to pay of other PRPs. First, a standard \"new information\" reopener such as that used by the EPA is incorporated in all de minimis and mid-tier settlements. To protect Plaintiffs against the possibility that a settlor's full waste contribution to the Site had not been discovered at the time or settlement, Plaintiffs may collect additional monies if new information comes to light indicating that a settlor contributed a greater volume of waste. Second, because CERCLA recognizes that a PRP may be jointly and severally liable, Plaintiffs' settlements reflect a proportion of response costs attributable to bankrupt or financially insolvent PRPs. This portion is referred to as an \"orphan share.\" The de minimis settlements incorporate an orphan share of 20 percent. Early settlement proposals offered an orphan share of five percent to encourage settlement; later settlements included a 30 percent volumetric orphan share.\n\nII.\nThe plaintiffs in this case urge us to affirm a bar on any nonsettlors' suits for response cost contribution against the settlors.[2] Plaintiffs ask that we apply either 42 U.S.C. § 9613(f)(2) (CERCLA § 113(f)(2)) or the Uniform Contribution Among Tortfeasors Act § 4, 12 U.L.A. 98 (1975) (\"UCATA\") to bar future claims for response cost contribution. Plaintiffs also ask that we employ the UCATA approach by crediting Defendants with the amount the settlors are paying, rather than with their equitable share of waste.\n\nA. Contribution Bar\nSection 113(f)(2) states:\nA person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable parties unless its terms so provide, but it reduces the potential liability of others by the amount of the settlement.\nSection 4 of the UCATA states, in relevant part:\nWhen a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:\n. . . . .\n(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.\nPlaintiffs cite two reasons for the Court to apply section 113(f)(2): first, that political subdivisions of states, such as the City and County of Denver, may be considered \"states\" for the purposes of section 113(f)(2); and second, the section should effectively apply even to solely private settlement agreements both as a matter of public policy and pursuant to the UCATA.\n\n1. Municipalities, Private Parties, and Section 113(f)(2)\nThe legislative history of CERCLA is not very helpful in resolving the issue of whether a city may be a \"state\" under CERCLA § 113(f)(2). In City of New York v. Exxon Corp., 697 F. Supp. 677 (S.D.N.Y. 1988), the Court rigorously analyzed CERCLA's statutory language, concluding that *344 Congress did not intend for its listing of \"United States or a State\" in CERCLA § 113(f)(2) to be exclusive of cities.[3] We agree.\nDefendants point out that few of the Agreements, if any, appear to have been actually signed by the City and County of Denver, and thus any ruling that Denver can be a \"state\" under CERCLA § 113(f)(2) would not dispose of the issue of whether a bar order is appropriate here. Plaintiffs respond by noting that Denver is a plaintiff in this case, and it approved and agreed to be bound by all the settlements. We agree that, insofar as Denver has agreed to be bound by the settlement agreements, it has as much of a relevant relationship with them as if it had signed them.\nWe also agree that to deny the section 113(f)(2) bar to the city would be \"unduly formalistic\" and contrary to the remedial purpose of CERCLA. Id. at 685-86. \"CERCLA is essentially a remedial statute designed by Congress to protect and preserve public health and the environment. [Courts] are therefore obligated to construe its provisions liberally to avoid frustration of the beneficial legislative purposes.\" Id. at 685, quoting Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986). Contribution protection for those who settle with a municipality advances CERCLA's remedial purposes by encouraging early and complete settlements. Exxon Corp., 697 F.Supp. at 685.\nPublic policy considerations, combined with the independent backdrops of the UCATA and the Uniform Comparative Fault Act, 12 U.L.A. 44 (West Supp.1992) (\"UCFA\") (both of which provide for contribution bars), compel the conclusion that both cities and private parties should be eligible for contribution protection in environmental cleanup cases. Allied Corp. v. Acme Solvent Reclaiming, Inc., 771 F. Supp. 219, 222-23 (N.D.Ill.1990) (applying section 113(f)(2) to private settlements as matter of public policy). Were we to allow contribution claims against settling PRPs, the purposes of CERCLA would not only fail to be served, but would be thwarted. We do not find section 113(f)(2) inconsistent with contribution bars for city and private party plaintiffs; on the contrary, although section 113(f)(2) does not itself provide authority for private-party contribution bars, such bars are clearly in keeping with the spirit of both facilitating settlement as well as CERCLA.\nCERCLA has two primary purposes: (1) to achieve the prompt cleanup of hazardous waste sites and (2) to impose the cost of the cleanup on those responsible for the contamination. U.S. v. Rohm & Haas Co., 721 F. Supp. 666 (D.N.J.1989); State of Colorado v. ASARCO, 608 F. Supp. 1484, 1491 (D.Colo. 1985). It is clear that settlement is consistent with the purpose of CERCLA. Acushnet River & New Bedford Harbor, 712 F. Supp. 1019, 1027 (D.Mass.1989). Courts have a strong interest in promoting all types of settlement. Metropolitan Housing Dev. Corp. v. Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Allied Corp., 771 F.Supp. at 222. In fact,\n[t]his interest is especially pronounced in complex matters such as CERCLA claims, where the amount of evidence to be gathered for assessing liability is voluminous. It is hard to imagine that any defendant in a CERCLA action would be willing to settle if, after settlement, it would remain open to contribution claims from other defendants. The measure of finality which a cross-claim bar provides will make settlements more desireable.\nId.\nAccordingly, the settlement agreements will be approved with a bar against response cost contribution claims by nonsettling parties against settlors.[4]\n\nB. Amount Paid versus Equitable Share\nThe second issue before the Court is whether to credit the nonsettling defendants, *345 under the UCATA,[5] with the amount paid by the settlors or, under the UCFA, with the equitable share of waste represented by the settlors.[6] The question may be largely academic because it appears in this case as if the amount paid and the equitable share are the same thing. We note that under the common interpretation of \"equitable share,\" the Agreements are equitable in that they reduce Defendants' liability by the settlors' volumetric share of waste: the settlement payments were based on the settlors' volumetric share. Defendant Amax's theory of `equity,' however, holds that the Court, at trial, should attempt to measure the relative toxicity, and thus harmfulness and cost to the environment, of the differing types of waste. Amax believes its waste streams, while greater in volume, are relatively less toxic and harmful to the environment than those of many of the settlors.[7] Amax therefore maintains that allowing settlors to pay remedial costs based on their volumetric share unfairly reduces their true liability while artificially inflating Amax's.\nAmax then embarks on a lengthy argument for rejecting the amount paid approach in the UCATA for the proportionate share approach of the UCFA. However, Amax can cite no case law suggesting that proportionate share must be based on relative toxicity; the cases cited by Amax argue for nothing more than what the Agreements already do. In other words, Amax argues for the proposition that the nonsettlors' liability should be reduced by the settlors' \"equitable share\" of liability without explaining why that equitable share is anything other than proportionate volume. Yet, because the settlement amounts are based on the common understanding that proportionate share is measured by proportionate volume, either the UCATA or the UCFA could be applied to the Agreements with the same result for the nonsettlors.\nHowever, to the extent that it does or may matter, we believe the UCFA is inconsistent with the intent of Congress and the purpose of CERCLA. See, e.g., Rohm & Haas Co., 721 F.Supp. at 677; U.S. v. Pepper's Steel and Alloys, Inc., 658 F. Supp. 1160, 1168 (S.D.Fla.1987); U.S. v. Cannons Engineering Corp., 899 F.2d 79, 92 (1st Cir.1990). CERCLA's section 113(f)(2) provides that the liability of nonsettlors is to be reduced \"by the amount of the settlement.\" The language \"indicates that Congress made a conscious choice in 1986 not to adopt UCFA principles for CERCLA purposes.\" U.S. v. Cannons Engineering Corp., 720 F. Supp. 1027, 1048 (D.Mass.1989). Instead, Congress adopted the approach taken in section 4 of the UCATA, which states:\nWhen a release or covenant not to sue or not to enforce judgment is given in good faith to one or two or more persons liable in tort for the same injury or the same wrongful death:\n(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greater; and\n(b) It discharges the tortfeasor to whom it is given all liability for contribution to any other tortfeasor.\n(emphasis added).\nFurthermore, just as a settlement allowing subsequent contribution suits would be no *346 settlement at all, neither would the possibility of settlors going to trial to determine their comparative fault. This is especially true in the area of environmental contamination, where such a trial in a large case is likely to consist of weeks or months of speculative testimony, all from experts, regarding the relative toxicity of waste produced by both the litigating parties and those parties that have ostensibly settled their liability.[8] It is evident that such a system would provide a disincentive to any settlement whatsoever, to the detriment of a cost-effective and speedy remediation of the environment.\nCERCLA's section 113(f)(1) provides that CERCLA contribution claims \"shall be governed by Federal Law\" and resolved \"using such equitable factors as the court determines are appropriate.\" If a court believes in the idea of environmental settlements, then the court must exercise its equitable power to approve settlement agreements that actually result in matters being settled. See, e.g., Edward Hines Lumber Co. v. Vulcan Materials Co., 1987 WL 27368 (N.D.Ill. Dec. 4, 1987) (approving contribution bar without reference to CERCLA). The principle underlying effective, final settlements must be as true for cities and private parties as it is for states and the federal government: regardless of the status of parties involved in the settlement agreement, we must always remember that the beneficiaries of early settlement are public health and the environment. The Agreements will be approved under the UCATA and the Court's equitable power and Defendants' liability will be reduced by the amount of money paid pursuant to the Agreements.\n\nIII. Response Cost Bar\nDefendants contend that even if the Court imposes a bar on contribution actions brought by nonsettling parties (a contribution bar does not affect nonparties) against settlors, the bar should not include a bar on response costs. It is clear from the language of CERCLA itself that response cost actions are actions for contribution and are thus prohibited by contribution bars. See 42 U.S.C.A. §§ 9607(a)(4), 9613(f); see also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989) (citing section 9613(f) and holding that when \"one liable party sues another to recover its equitable share of the response costs, the action is one for contribution\").\nHolding response costs subject to a contribution bar is also consistent with CERCLA's encouragement of settlements, outlined above. \"The courts have consistently enforced CERCLA by providing settling parties with immunity from any claim ... [that is] in substance a claim for contribution, though the claim may be called something else.\" Dravo Corp. v. Zuber, 804 F. Supp. 1182, 1184 (D.Neb.1992) (holding defendant's section 113(f)(2) settlement barred plaintiff's various common law contribution actions because CERCLA intended to foreclose such claims no matter what they are called); accord Cannons Engineering, 899 F.2d at 92 (upholding dismissal of cross-claims for indemnity so as not to \"eviscerate § 9613(f)(2) and allow nonsettlors to make an end run around the statutory scheme\"); AKZO Coatings, Inc. v. Aigner Corp., 803 F. Supp. 1380 (N.D.Ind.1992) (viewing as barred claims arising from same subject matter as claims barred by section 113(f)(2)); U.S. v. Pretty Products, Inc., 780 F. Supp. 1488 (S.D.Ohio 1991) (dismissing contribution claims under CERCLA and state law claims for indemnity, breach of contract, quasi-contract, quantum meruit, and unjust enrichment); U.S. v. Alexander, 771 F. Supp. 830 (S.D.Tex.1991) (imposing sanctions for assertion that \"`a nonsettling defendant may pursue contribution under state law for liability for response costs, notwithstanding the contribution bar provisions of CERCLA'\").\nThe District Court in Alexander stated:\nit is inconceivable to this Court that Congress, wanting to encourage parties to settle *347 early with the Government, would so carefully fashion protections against contribution claims under CERCLA, but then leave those same parties exposed to similar liability by allowing state law contribution schemes to be pursued.\nId. at 841.\nWe believe that a contribution bar under the UCATA should logically operate in the same manner as one under CERCLA. Response costs must also be barred as to the settlors.\n\nIV. Nonsettlors' Reduction of Liability: Settlement Premiums\nDefendants urge the Court to credit them with the entire amount of payment given Plaintiffs through the Agreements. Defendants assert that if Plaintiffs are allowed to pocket the cost overrun premiums and assumed obligations premiums, then Plaintiffs will have obtained what amounts to sheer profit at the expense of the environment. We do not believe that such an interpretation properly construes the premiums.\nBy offering to assume or absorb certain risks in return for the premiums, Plaintiffs are effectively acting like an insurance company. They are performing a task that an outside insurance company could just as well do, and the fact that it is Plaintiffs who are doing the insuring does not somehow tie the premiums to environmental cleanup costs. Indeed, it would be unjust to require Plaintiffs to put the premiums — the consideration for Plaintiffs' assumption of risk — toward cleanup, only to have Plaintiffs later expend a like sum in meeting the obligations it assumed in return for the premiums. Simply put, Plaintiffs are entitled to the premiums because Plaintiffs have agreed to assume risks; the payment for environmental damage and the payment for Plaintiffs' agreement to insure against risks are analytically distinct.\nHowever, in light of other rulings in this order, we view premiums relating to response costs as a different matter. We direct that the balance of all premiums relating to response costs be devoted to environmental remediation or disposed of as may be ordered by the court.[9]\n\nV.\nThe Court finds that the Agreements are fair and reasonable. The terms are complete and justifiable. The settlement amounts are based upon objective criteria measuring proportionate share of waste. The settlement amounts are therefore not unfair to nonparties and nonsettling defendants, especially insofar as the settlement amounts are based upon an estimated cost of remedying the Site which is far in excess of that which Defendants themselves propose.\nAccordingly, it is ordered that:\n(1) Plaintiffs' Motion for Approval of Settlements, filed October 20, 1992, is GRANTED in PART.\n(2) The settlements are approved by the Court.\n(3) All claims for contribution and response costs by nonsettling parties-defendants against the settling parties-defendants, however denominated, which were or could have been asserted by nonsettling parties-defendants against settling parties-defendants regarding any claim arising out of any of the matters or transactions alleged or referred to in this action, are barred, extinguished, discharged, and satisfied, except as provided for in the Agreements.\n(4) No premiums charged by Plaintiffs in the Agreements, except the premiums relating to response costs, shall be credited to nonsettlors. The Court DIRECTS that the balance of all premiums relating to response costs be devoted to environmental remediation or disposed of as may be ordered by the court.\n(5) The nonsettling parties' share of liability is to be reduced by the amount paid by the settling parties for their volumetric share of the remedial costs of the Site.\n(6) Plaintiffs' Response to January 29, 1993 Minute Order, filed February 5, 1993, is ordered SEALED.\n*348 (7) Joining Defendants' Motion for Leave to File a Supplemental Submission to Address Plaintiffs' Response to January 29, 1993 Minute Order, filed February 9, 1993, is GRANTED.\n(8) The request to direct production of Plaintiffs' summary of settlements, embodied in Joining Defendants' Supplemental Submission to Address Plaintiffs' Response to January 29, 1993 Minute Order, filed February 9, 1993, is DENIED. The Supplemental Submission is ordered SEALED.\nNOTES\n[1] The equation for computing settlement amounts for individual PRPs was as follows:\n\nSettlement Amount = Estimated Cost of Remedy × .80 × (Settlor's Volumetric Waste Contribution/Total Waste at Site) + Cost Overrun Premium + Assumed Obligations Premium\n[2] Plaintiffs' original motion requested a bar to claims \"against the settling parties for contribution or response costs.\" It was therefore unclear whether Plaintiffs intended to bar types of contribution costs other than response costs. However, Plaintiffs' reply brief explicitly maintains they are requesting a bar merely against response costs.\n[3] While the Court in City of New York also noted the State of New York had given the settlements its approval, the Court did not rely on the fact.\n[4] Defendants have been denied access to certain provisions in the Agreements. Defendants protest that the Court cannot approve a bar order affecting their rights in ways unknown to them. Defendants are correct in their conclusion, but their premise is flawed. The information Plaintiffs seek to keep confidential does not affect Defendants' rights in any way whatsoever. The contribution bar, the only provision in the Agreements affecting Defendants' rights, is one of which Defendants have full knowledge.\n[5] The UCATA § 4 states, in relevant part:\n\nWhen a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death: (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or covenant, or in the amount of consideration paid for it, whichever is the greater ...\n[6] Under the UCFA, when any plaintiff settles with less than all of a group of joint tortfeasors, the liability of the nonsettling defendants is reduced by the settlors' proportionate share of liability, rather than by the amount paid by the settling defendants.\n[7] This argument was essentially rejected by the EPA. The EPA made a statutory determination that the waste of the de minimis settlors is no more toxic than the waste of any other PRP.\n[8] None of the cases applying the UCFA cited by Defendants are as complex as this one. For example, the plaintiffs in Comerica Bank-Detroit v. Allen Indus., Inc., 769 F. Supp. 1408 (E.D.Mich.1991), sought approval of only one settlement agreement. The plaintiffs in U.S. v. Western Processing Co., Inc., 756 F. Supp. 1424 (W.D.Wash.1990), sought approval of only 26 settlement agreements. In the matter before us, we are presented with the question of whether to approve 119 settlement agreements that are already based on proportionate volumetric share.\n[9] We note that Plaintiffs, in their Response to January 29, 1993 Minute Order, filed February 5, 1993, have promised to devote the premiums to remedy, subject to certain reasonable conditions.\n\n", "ocr": false, "opinion_id": 1876806 } ]

[ "626 P.2d 675" ]

[ { "author_str": "Quinn", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3930, "opinion_text": "\n626 P.2d 675 (1981)\nPEOPLE of the State of Colorado, Complainant,\nv.\nRichard G. LUXFORD, Attorney-Respondent.\nNo. 81SA77.\nSupreme Court of Colorado, En Banc.\nApril 6, 1981.\n*676 Linda Donnelly, Disciplinary Prosecutor, Denver, for complainant.\nMartin P. Miller, Littleton, for attorney-respondent.\nQUINN, Justice.\nA formal complaint was filed with this court alleging three counts of professional misconduct against the respondent, Richard G. Luxford, in violation of C.R.C.P. 241(B), DR1-102(A) and DR5-104(A). The respondent was licensed to practice law in Colorado on February 26, 1944, and previously received a private censure by this court on June 1, 1978 for misconduct.\nThe first count of the present grievance complaint involves checks cashed by the respondent in March 1978. It alleges that the respondent caused four checks amounting to $1,487.00 to be drawn on a business establishment known as \"Two Seventeen\" in which the respondent had an interest. The checks were drawn by an employee of the respondent at the latter's direction. Three checks were made payable to the respondent and the fourth was payable to \"Two Seventeen\". The respondent cashed the checks. All the checks were unpaid due to insufficient funds or a closed account. Count one alleges that the respondent knew or should have known of the insufficiency of funds when he cashed the checks.\nThe second count of the complaint involves eight checks negotiated by the respondent between November 1975 and January 1976, and also two loans to or for the benefit of the respondent in November 1975 and August 1976. The eight checks totaled $705 and were drawn on the account of Rachel L. Brauns, the respondent's sister. One check was payable to the respondent and the others were payable to Carroll's Aeroplane Club, which was owned and operated by Howard P. Carroll, a client of the respondent. The complaint charges the respondent with negotiation of the checks knowing that there were insufficient funds for their payment.\nThe two loans were obtained from Western National Bank. The bank loaned $2,014.24 to the respondent and his client, Howard P. Carroll, and made another loan of $3,000 to Carroll. Promissory notes bearing interest at the rate of 11.99 percent per annum were executed for the loans. In both instances Carroll paid over the proceeds to the respondent with the understanding that the respondent promptly would make repayment to the bank. The respondent failed to repay and, after Carroll discharged the loans, he refused to reimburse Carroll.\nThe third count relates to a loan of $1,000 obtained by the respondent from another client, H. Fulton Peters, in July 1976. The respondent prepared a promissory note for the loan with interest at the rate of 12 percent per annum. In the blank space for the maturity date the respondent inserted the words \"I promise to pay.\" Where the name of the payee should have been inserted, the respondent wrote the amount of $1,000.00. The note was payable on August 16, 1976, but was not paid in spite of repeated demands by the client.\nOn September 13, 1979, during the course of these proceedings, the respondent was suspended from the practice of law due to a claimed disability of alcoholism. C.R.C.P. 256(C). In November 1979 he obtained treatment for this condition at the Veterans Administration Medical Center in Denver, *677 Colorado. Thereafter this court found him to be capable of adequately defending himself in these proceedings.\nThe respondent testified before a hearings committee on October 23, 1980. He admitted the aforementioned allegations and attributed his acts of misconduct to alcoholism and his need for money to support his drinking habit. Since his discharge from the medical facility, the respondent has continued treatment as an outpatient and has not drunk alcoholic beverages at all. Approximately one-half of the restitution due and owing has been paid and the respondent intends to pay off the balance of this indebtedness.\nThe hearings committee concluded that the respondent's conduct was deceitful, fraudulent and contrary to the highest standards of honesty, justice and morality. While being favorably impressed with the respondent's sincerity in his rehabilitative efforts, the committee was concerned about his pattern of procrastination in the payment of restitution. The committee recommended the respondent's suspension be continued and, at the expiration of one year, the respondent be permitted to request reinstatement upon a showing that he has totally abstained from the consumption of alcoholic beverages, that full restitution has been paid to those from whom money was wrongfully obtained, and that interest has been paid to those to whom restitution is due at the rate set forth in the underlying instruments and, in the absence of designated interest, at the statutory rate. The grievance committee approved these conclusions and recommendations and we hereby adopt them.\nThe respondent's misconduct violated the highest standards of honesty, justice, and morality. C.R.C.P. 241(B)(4). Such misconduct adversely reflects upon the legal profession and fosters public disrespect for it. It is sufficient to point out here that the respondent violated one or more of the following disciplinary rules in each of the transactions underlying this proceeding:\n\"DR1-102 Misconduct\n\n(A) A lawyer shall not:\n* * * * * *\n(3) Engage in illegal conduct involving moral turpitude.\n(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.\n(5) Engage in conduct that is prejudicial to the administration of justice.\n(6) Engage in any other conduct that adversely reflects on his fitness to practice law.\"\n\"DR5-104 Limiting Business Relations With a Client\n\n(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.\"\nIt is ordered that the respondent be suspended from the practice of law. At the expiration of one year from the date of this order the respondent may apply for reinstatement upon a demonstration that he has totally abstained from alcoholic beverages, that he has paid full restitution plus interest to those to whom it is owing, and that he is a proper person to be readmitted to the Bar of Colorado, notwithstanding the previous disciplinary action taken against him. It is further ordered that the costs of this proceeding in the sum of $677.59 shall be paid to the clerk of this court within six months from this date.\nERICKSON, J., does not participate.\n", "ocr": false, "opinion_id": 2613641 } ]

[ "626 P.2d 901", "51 Or. App. 577" ]

[ { "author_str": "Joseph", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n626 P.2d 901 (1981)\n51 Or.App. 577\nLyle WOODCOCK, Petitioner,\nv.\nLAND CONSERVATION and DEVELOPMENT Commission, Jack C. Oldham, and Josephine County Board of Commissioners, Respondents.\nLCDC No. 79-045; CA 17571.\nCourt of Appeals of Oregon.\nArgued and Submitted September 24, 1980.\nDecided April 13, 1981.\nReconsideration Denied May 21, 1981.\nDaniel F. Hughes, Grants Pass, argued the cause and filed the briefs for petitioner.\nMark J. Greenfield, Portland, argued the cause and filed the brief for respondent Jack C. Oldham.\nAl J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent Land Conservation and Development Commission. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.\nDuane Wm. Schultz, Grants Pass, waived appearance for respondent Josephine County Bd. of Com'rs.\nBefore JOSEPH, P.J., and WARDEN and WARREN, JJ.\n*902 JOSEPH, Presiding Justice.\nThis case requires reconciling two provisions of the state land use planning statutes. The first, ORS 197.251(1), authorizes the Land Conservation and Development Commission to grant or to deny acknowledgment that a local government's land use regulatory devices comply with the statewide planning goals; it necessarily contemplates that LCDC might review local land use matters for compliance with the goals long after those decisions became final at the local level. The second, former ORS 197.300(2), required that an appeal to LCDC alleging that a specific local government land use decision violated the statewide planning goals had to be filed with LCDC \"not later than 60 days after\" the local government action.[1]\nPetitioner owns rural, undeveloped land in Josephine County on which he wishes to construct a small shopping center. The property is agricultural land within the meaning of Goal 3, which means, generally, that it can only be zoned for exclusive farm use. Aware of that impediment to his development plans, petitioner decided to apply first for a comprehensive plan amendment and, if that was successful, to apply subsequently for a zone change.\nThe first step was concluded in December, 1978, when the Josephine County Board of County Commissioners approved petitioner's requested comprehensive plan change. At that time the Commissioners also adopted an \"exception\" to Goal 3 for the subject property.[2] Petitioner then applied for a zone change. In August, 1979 — some eight months after adoption of the comprehensive plan amendment and the exception to Goal 3 — the Commissioners approved petitioner's requested zone change. Those two actions were, however, related because the August, 1979, zone change findings incorporated by reference the December, 1978, plan change findings.\nAn objecting neighbor then initiated this proceeding before LCDC. The appeal to LCDC was filed within the 60 days allowed by former ORS 197.300(2), at least to the extent that it challenged the August, 1979, zone change; and it appears to us from the LCDC review petition that only the August, 1979, zone change was expressly challenged by the appeal. LCDC determined that in order to review the August, 1979, zone change it was necessary also to review the underlying December, 1978, plan change on which the subsequent zone change was based in part. It should be noted that Josephine County's comprehensive plan had not yet been acknowledged.\nOn the merits, LCDC reversed, ruling that the December, 1978, exception to Goal *903 3 did not comply with the statewide planning goals and that with its foundation gone, the August, 1979, zone change was also invalid. Petitioner appealed to this court. He does not challenge LCDC's decision on the merits. Rather, he argues only that LCDC lacked jurisdiction to review the December, 1978, plan amendment and exception because no appeal from those actions was filed within the 60-day limit of former ORS 197.300(2).\nThe two statutes in question are integral parts of the statutory schema for land use control. ORS 197.251(1) (respecting LCDC acknowledgment of local land use plans, ordinances and regulations) establishes both that local governments must comply with the statewide planning goals in their comprehensive plans, implementing ordinances and regulations, and that the state agency, LCDC, is to determine whether the local actions comply with the goals. When requesting LCDC acknowledgment, a local government cannot establish compliance with state law merely by showing that its plan and implementing ordinances were adopted more than 60 days ago. Regardless of how protracted the local planning process might be, all of the multitude of discrete and general decisions that make up that process are subject to LCDC review as a precondition for acknowledgment.\nOn the other hand, a finite time limit on initiating appeals from specific land use decisions, such as the 60 days provided in former ORS 197.300(2), promotes stability and repose; that is, once the time for appeal has passed, interested persons can rely on the finality of a given land use decision in determining their courses of action. Cf. Brooks v. Dierker, 275 Or. 619, 552 P.2d 533 (1976); 1000 Friends v. Clack. Co. Comm., 40 Or. App. 529, 595 P.2d 1273, rev. den. (1979).\nLCDC has attempted to implement these potentially conflicting considerations by adopting what is known as its \"Umatilla policy\":\n\"Once an exception is taken * * * a city or county is entitled to rely upon that exception prior to the acknowledgment of the comprehensive plan for purposes of making decisions within the area [for] which the exception has been taken. However, if a decision within the area is challenged on the basis that no valid exception has been taken, then the city or county, or LCDC on review, must examine the exception taken and determine whether the findings are adequate to support the exception.\" City of Umatilla v. Umatilla County et al., LCDC 78-029, Final Order at 2.\nThe opinion of the hearing officer in this case, which was adopted by LCDC, elaborated:\n\"The 60-day limit [of former ORS 197.300(2)] is similar to the time limits for appealing writs of review and for appealing to the Court of Appeals from agency rulemaking and contested case decisions. See ORS 34.030, 183.400(1), 183.484(2). * *\n\"However, these time limits don't always provide absolute certainty. For example, a rule which is not appealed upon its adoption may be challenged and upset later on by someone who is adversely affected by its specific application. See ORS 183.400(2). It is no defense to such a challenge that the time for [directly] challenging the rule * * * has run.\n\"A pre-acknowledgment land use decision is also subject to later challenge. [ORS ch. 197 provides] for a `compliance acknowledgment' procedure under which the Commission reviews all planning, zoning and other land use ordinances or regulations of the local jurisdiction and issues an order either granting or denying acknowledgment. A denial is a declaration that some or all of the rules under review conflict with statewide goals and must be changed to bring them into line. See ORS 197.251.\n\"In a very real sense, therefore, the plan amendment and exception granted by Josephine County in 1978 remain open to challenge until acknowledgment. The County has not yet achieved that acknowledgment. Until it does, a degree of uncertainty will continue to prevail. *904 Counties which wish to remove that cloud from their planning horizon would be well-advised to obtain early acknowledgment.\"\nPetitioner's attack on LCDC's analysis in this court is long on hyperbole but short on law. For example, he complains:\n\"It is apparently the Commission's position that any land use planning change since 1973 is subject to being set aside by them for any alleged goal violations regardless of how much time has passed since the local land use planning decision.\"\nThat is not an accurate paraphrase of LCDC's \"Umatilla policy.\" That policy does not permit a belated collateral attack on \"any\" and every prior land use decision; it limits that possibility to situations where the earlier land use decision involved the taking of a Goal 2, Part 2 exception. The balance of petitioner's argument merely repeatedly invokes the 60-day time limit of former ORS 197.300(2): e.g., \"Have we truly arrived at the point that an express legislative mandate can be completely and totally ignored?\"\nWhat petitioner does not appreciate or clearly face up to is that this case involves two express legislative mandates that are not completely consistent on their faces — LCDC's ORS 197.251(1) acknowledgment authority to review local land use plan and zone designations without regard to when they were adopted versus LCDC's former ORS 197.300(2) review authority, which is limited by the 60-day limitation rule. Springfield Education Assn. v. School Dist., 290 Or. 217, 621 P.2d 547 (1980), distinguishes between \"terms of complete legislative expression\" and \"delegative terms,\" defining the former in this way:\n\"When applying [statutory] terms of complete legislative expression, it is the function of the agency to determine initially which decision is within the legislative policy * * *.\n\"* * *\n\"If the statute requires interpretation, however, the interpretation and the agency's rationalization of it are properly a part of the reasoning of the order. Thus, under ORS 183.470, the order itself is the instrument by which an agency demonstrates that a particular interpretation or application of a statute is within a generally expressed legislative policy.\n\"* * *\n\"The dispositive question of law on [judicial] review * * * is whether the agency action is within the legislative policy which inheres in the statutory term.\" 290 Or. at 226-227, 621 P.2d 547.\n\"Delegative terms,\" on the other hand fit this rubric:\n\"The delegation of responsibility for policy refinement under such a statute [i.e., one containing \"delegative terms\"] is to the agency, not to the court. The discretionary function of the agency is to make the choice and the review function of the court is to see that the agency's decision is within the range of discretion allowed by the more general policy of the statute.\" 290 Or. at 229, 621 P.2d 547.\nSpringfield and the cases cited therein involved the interpretation of specific statutory words or phrases. Here, by contrast, the required interpretation involves an entire statutory scheme. However, we see no reason why the Springfield analysis should not be applied in this context, and it leads to the conclusion that we are dealing with terms of complete legislative expression.\nThe part of the hearing officer's opinion adopted by LCDC and quoted above stated as the fundamental reason for LCDC's \"Umatilla policy\":\n\"* * * A pre-acknowledgment decision is * * * subject to later challenge [during acknowledgment proceedings]. * * * A denial [of acknowledgment] is a declaration that some or all of the rules under review conflict with statewide goals and must be changed * * *.\n\"In a very real sense, therefore, the plan amendment and exception granted by Josephine County in 1978 remain open to challenge until acknowledgment. * * [Until acknowledgment], a degree of uncertainty will continue to prevail. Counties which wish to remove that cloud *905 from their planning horizon would be well-advised to obtain early acknowledgment.\"\nThat rationale depends upon the validity of an unstated premise: Until acknowledgment is had by a local government, the statewide goals must be properly applied locally in every discrete, as well as general, land use planning activity, and LCDC is charged generally with making sure that is done, regardless of the local technique used. We have already said that. See Willamette University v. LCDC, 45 Or. App. 355, 608 P.2d 1178 (1980). An agency policy was required in the absence of precise legislative direction about how LCDC is to treat pre-acknowledgment local decisions. Not only does the reasoning used support the policy adopted, we do not believe LCDC could have adopted any other policy.\nIt was argued here that former ORS 197.300(2) reflected a general policy of finality-and-repose intended to protect all local decisions from attack unless that attack was timely made. If that view were taken, then it would follow that the legislature intended LCDC to limit its review of local pre-acknowledgment actions only to those brought to it strictly within the time limits; all else would merely be history. We believe no conflict between the two statutory provisions is actually presented by this case. Petitioner chose to proceed in two steps: first the plan change, then the zone change. But actual development could not proceed until the zone change, and that was timely challenged. While the zone change followed from the plan change (see Baker v. City of Milwaukie, 271 Or. 500, 506, 533 P.2d 772 (1975)), and while the efficacy of the challenge to the zone change depended upon being able to reach the plan change, we see no violation of the rest-and-repose policy in that reaching. Petitioner created the hiatus by moving in two steps. Under the ORS chapter 197 scheme of things when an exception has been taken, the time for rest-and-repose can only come after the last prerequisite for development has been achieved.\nAffirmed.\nNOTES\n[1] Former ORS 197.300 was repealed by Oregon Laws 1979, chapter 772, section 26. At the same time Oregon Laws 1979, chapter 772, section 4 was enacted; it provides that appeals from specific local government land use decisions are to be filed with the Land Use Board of Appeals \"not later than 30 days after the date the decision sought to be reviewed becomes final.\" Or. Laws 1979, ch. 772, § 4(4).\n\nDespite these changes created by the 1979 statute, the tension between ORS 197.251(1) and former ORS 197.300(2) is the same as that between ORS 197.251(1) and Oregon Laws 1979, chapter 772, section 4(4). Therefore, our analysis of the former statute is also applicable to the present statute.\n[2] Goal 2, Part 2, permits local governments to take an \"exception\" to the statewide planning goals, i.e., to plan and zone land in ways other than required by the state goals. Goal 2, Part 2, imposes significant specific requirements for an exception:\n\n\"When, during the application of the statewide goals to plans, it appears it is not possible to apply the appropriate goal to specific properties or situations, then each proposed exception to a goal shall be set forth during the plan preparation phases and also specifically noted in the notices of public hearing. * * *\n\"If the exception to the goal is adopted, then the compelling reasons and facts for that conclusion shall be completely set forth in the plan and shall include:\n\"(a) Why these other uses should be provided for;\n\"(b) What alternative locations within the area could be used for the proposed uses;\n\"(c) What are the long term environmental, economic, social and energy consequences to the locality, the region or the state from not applying the goal or permitting the alternative use;\n\"(d) A finding that the proposed uses will be compatible with other adjacent uses.\"\n\n", "ocr": false, "opinion_id": 2613693 } ]

[ "485 F.2d 1237" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/485/485.F2d.1237.73-1813.223.html", "author_id": null, "opinion_text": "485 F.2d 1237\n 73-2 USTC P 16,120\n ALLIED BITUMENS, INC., Plaintiff-Appellee.v.UNITED STATES of America, Defendant-Appellant.\n No. 223, Docket 73-1813.\n United States Court of Appeals,Second Circuit.\n Argued Oct. 25, 1973.Decided Nov. 2, 1973.\n \n Louis A. Bradbury, Atty., Tax Div., Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Elmer J. Kelsey, Attys., John T. Elfvin, U. S. Atty., for the Western District of New York, on the brief), for defendant-appellant.\n Thomas J. Fori, Albany, N. Y. (Harry R. Hayes, Albany, N. Y., on the brief), for plaintiff-appellee.\n Before SMITH, FEINBERG and OAKES, Circuit Judges.\n PER CURIAM:\n \n \n 1\n The United States appeals from a judgment of $13,192.89 with interest for plaintiff taxpayer Allied Bitumens, Inc. after a trial in a tax refund suit in the United States District Court for the Western District of New York, before Judge John T. Curtin. The judge held that the asphalt distributors and slurry machines used by taxpayer in road construction and repair were not \"highway motor vehicles\" within 26 U.S.C. Sec. 4482(a) so as to be subject to the tax imposed by section 4481(a). We affirm substantially for the reasons set forth in Judge Curtin's opinion, 353 F. Supp. 1128 (W.D.N.Y.1973). Although the judge did not discuss the effect of the last sentence of the pertinent Treasury Regulation,1 relied on heavily by the United States in this appeal, that sentence does not suggest a contrary result.\n \n \n 2\n Judgment affirmed.\n \n \n \n 1\n 26 C.F.R. 41.4482(a)-1\n \n \n ", "ocr": false, "opinion_id": 314031 } ]

[ "665 F.2d 47" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/665/665.F2d.47.81-1298.406.html", "author_id": null, "opinion_text": "665 F.2d 47\n UNITED STATES of America, Plaintiff-Appellee,v.Charles JENKINS, Defendant-Appellant.\n No. 406, Docket 81-1298.\n United States Court of Appeals,Second Circuit.\n Submitted Nov. 23, 1981.Decided Nov. 24, 1981.\n \n James M. Morrissey, Federal Defender Services Unit, The Legal Aid Society, New York City, for appellant.\n Michael E. Norton, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., New York City, for the Southern District of New York), for appellee.\n Before KAUFMAN, TIMBERS, and MESKILL, Circuit Judges.\n PER CURIAM:\n \n \n 1\n This is an appeal from a judgment entered by Judge Pollack upon a jury verdict convicting Charles Jenkins of one count of armed bank robbery in violation of 18 U.S.C. § 2113(d)1 and one count of bank robbery in violation of 18 U.S.C. § 2113(a).2 Since a conviction of bank robbery pursuant to § 2113(a) is deemed merged into a conviction of armed bank robbery pursuant to § 2113(d), we reverse and remand to the district court with directions to vacate the conviction pursuant to 18 U.S.C. § 2113(a) and the sentence imposed thereon.\n \n \n 2\n The relevant facts can be briefly recounted. On the morning of October 14, 1980, Charles Jenkins, wearing glasses, a beret, and a leather coat, entered a branch of Chemical Bank located in the Bronx, New York. He approached a teller and announced that \"this is a hold-up.\" She reacted by dropping to the floor. He then brandished a knife and demanded money from another teller. After obtaining $821.00 in small bills, Jenkins fled from the bank. Jenkins delayed his flight from the vicinity of the bank momentarily to purchase a sheepskin coat at a nearby clothing store. He hailed a cab after making his purchase. Notified by bank employees who had followed Jenkins, the police stopped the cab and arrested Jenkins approximately six blocks from the bank.\n \n \n 3\n On October 24, 1980, the grand jury returned an indictment charging Jenkins with armed bank robbery of the Chemical Bank in violation of 18 U.S.C. § 2113(d) (Count One) and with bank robbery in violation of 18 U.S.C. § 2113(a) (Count Two). After a two-day trial, the jury returned a verdict convicting Jenkins on both counts of the indictment. Subsequently, Judge Pollack entered a judgment of conviction on both counts. The court sentenced Jenkins to concurrent terms of imprisonment of fifteen years on Count One (armed bank robbery) and ten years on Count Two (bank robbery).\n \n \n 4\n We are of the view that a judgment may not be entered on simultaneous convictions pursuant to both § 2113(a) and § 2113(d) on an identical set of facts. We stated in Grimes v. United States, 607 F.2d 6 (2d Cir. 1979), that a conviction of the lesser included offense of unarmed bank robbery, § 2113(a), must be deemed merged into a conviction of armed bank robbery, § 2113(d), when both convictions arise from a single criminal act, as they do here. See also United States v. Smith, 621 F.2d 483, 489 (2d Cir. 1980), cert. denied, 449 U.S. 1086, 101 S. Ct. 875, 66 L. Ed. 2d 812 (1981); United States v. Garris, 616 F.2d 626, 633-34 (2d Cir.), cert. denied, 447 U.S. 926, 100 S. Ct. 3021, 65 L. Ed. 2d 1119 (1980). The Government so concedes. Indeed, the phrasing of § 2113(d) indicates that it proscribes aggravated forms of offenses already defined in § 2113(a):\n \n \n 5\n Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.\n \n \n 6\n In short, to commit an offense under § 2113(d), it follows that an individual must violate either subsection (a) or (b). Accordingly, as we reasoned in Grimes, only one conviction may stand when a defendant is found guilty of violating both § 2113(d) and either § 2113(a) or (b). Grimes v. United States, supra, 607 F.2d at 13.\n \n \n 7\n In light of the mandate of Grimes, we reverse and remand to the district court with directions to vacate the conviction of unarmed bank robbery pursuant to 18 U.S.C. § 2113(a) and the sentence imposed thereon. Jenkins's conviction pursuant to § 2113(d) and the sentence thereon stand. Affirmed in part; reversed and remanded in part.\n \n \n \n 1\n 18 U.S.C. § 2113(d) provides:\n Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.\n \n \n 2\n 18 U.S.C. § 2113(a) provides:\n Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; or\n Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny-\n Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.\n \n \n ", "ocr": false, "opinion_id": 397233 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 28, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1560-24", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n BRENT EDWARD CRUMMEY,\n\n Plaintiff,\n\n v. Civil Action No. 10-01560 (CKK)\n SOCIAL SECURITY\n ADMINISTRATION,\n\n Defendant.\n\n\n MEMORANDUM OPINION\n (June 30, 2011)\n\n trust, n. (15c) . . . . The right, enforceable solely in equity, to the beneficial\n enjoyment of property to which another person holds the legal title; a\n property interest held by one person (the trustee) at the request of another\n (the settlor) for the benefit of a third party (the beneficiary).\n\n B LACK ’S L AW D ICTIO N ARY 1647 (9th ed. 2009).\n\n\n Plaintiff Brent Edward Crummey (“Crummey”) has a theory. He believes that the Social\n\nSecurity Administration (the “SSA”) created a trust, which he calls BRENT E. CRUMMEY (the\n\n“Trust”), when it assigned him a Social Security Number (“SSN”) and a Social Security Card\n\n(“SSC”) over thirty years ago. Crummey believes that the Trust is a legal entity in its own right\n\nand contends that he merely lends it “consciousness” and “physical capacity.” Based on this\n\ntheory, Crummey decided to draft an agreement designed to reflect the alleged creation of the\n\nTrust (the “Trust Agreement”) and, over the years, Crummey has repeatedly tried to get the SSA\n\nto add a copy of the Trust Agreement to its official records. The SSA has consistently rejected\n\nCrummey’s theory, and along with it, Crummey’s several requests for amendment. The matter\n\ncomes to a head in this action, which Crummey has brought against the SSA under the Privacy\n\fAct, 5 U.S.C. § 552a, and the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Crummey\n\ncontends that the SSA violated these statutes by refusing to amend some of its records and by\n\nfailing to provide him access to others at his request.\n\n Presently before the Court is the SSA’s [9] Motion to Dismiss or, in the Alternative, for\n\nSummary Judgment (“Motion for Summary Judgment”), which Crummey has opposed. Also\n\nbefore the Court are Crummey’s [14] Motion to File a Surreply and his [19] Second Motion for\n\nJudicial Notice, in which Crummey asks this Court to consider various supplemental materials in\n\nfurther opposition to the SSA’s Motion for Summary Judgment. Upon a searching review of the\n\nparties’ submissions, the relevant authorities, and the record as a whole, the SSA’s Motion for\n\nSummary Judgment will be granted, Crummey’s Motion to File a Surreply will be denied,\n\nCrummey’s Second Motion for Judicial Notice will be granted-in-part and denied-in-part, and\n\nthis action will be dismissed. Briefly stated, the Court concludes that the SSA properly denied\n\neach of Crummey’s requests for amendment and that Crummey’s requests for access are moot\n\nbecause the SSA has produced all responsive records in its possession, custody, or control.\n\n I. PRELIMINARY MATTERS\n\n Although styled in the alternative as a motion to dismiss for failure to state a claim\n\npursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,1 the SSA’s motion turns upon\n\nthe consideration of materials outside the scope of the pleadings. In the course of briefing the\n\nmotion, both parties effectively treat the motion as one for summary judgment. For his part,\n\nCrummey does not suggest that he has been deprived “a reasonable opportunity to present all the\n\n\n 1\n On occasion, the SSA’s motion erroneously cites to Rule 12(b)(1), which concerns this\nCourt’s subject matter jurisdiction, but the contents of the SSA’s motion make it clear that it\nintended to bring the motion under Rule 12(b)(6).\n\n 2\n\fmaterial that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Indeed, in opposition to the\n\nSSA’s motion, Crummey has introduced, and relies heavily upon, materials outside the scope of\n\nthe pleadings. Accordingly, the Court shall treat the motion solely as one for summary judgment.\n\n II. BACKGROUND\n\n This action has its origins in Crummey’s efforts to have the SSA add a document to one\n\nof its most important record systems—the Master Files of the Social Security Number (SSN)\n\nHolders and SSN Applications (the “Master Files”). Briefly stated, the Master Files contain all\n\nthe information that the SSA receives on applications for SSNs (name, date and place of birth,\n\nsex, etc.), as well as other data elements directed towards establishing the identity of individuals\n\nassigned SSNs. See Notice of Proposed Routine Use, 75 Fed. Reg. 82,121, 82,123 (Dec. 29,\n\n2010). The touchstone for assigning SSNs, and by extension the fundamental underpinning of\n\nthe Master Files, is “true identity.” See 42 U.S.C. § 405(c)(2)(B)(ii); 20 C.F.R. §§ 422.103(c)(1),\n\n422.107(a), 422.110(a).\n\n A. The Trust Agreement\n\n Crummey believes that the SSA created the Trust when it assigned him an SSN and SSC\n\non or about October 17, 1976. To reflect this, Crummey drafted the Trust Agreement. See Decl.\n\nof Dawn S. Wiggins (“Wiggins Decl.”), ECF No. [9-1], Ex. A. Styled as an agreement between\n\nthe SSA and the Trust, with Crummey identified as the trustee, it provides:\n\n ORIGIN. This Trust was originally created, by the Social Security\n Administration . . . when SSA presented property, belonging to the\n United States Government, to the person SSA intended as the one that\n would lend consciousness and physical capacity to the Trust’s trustee\n capacity . . . ; thus, the Trust was created by the acceptance of said\n property, the Social Security Card (hereinafter “SSC”). Printed upon\n the SSC was the Trust’s name and Social Security Number\n (hereinafter “SSN”), followed by a place for the Trust’s signature.\n\n 3\n\f ***\n\n TRUSTEE. This Trust was created with a name that sounds nearly\n or exactly like the name of the child of God, who by covenant to obey\n the Law of Consecration only has the capacity of a Steward in the\n Kingdom of Israel as exemplified in a controlling Instrument of\n Acknowledgment. This Trust is neither said child nor said\n stewardship and in no ways acts as an alter ego or nominee of either.\n However, in accord with the SSA’s assignment of this Trust’s trustee\n capacity, through said Instrument of Acknowledgment said child\n lends consciousness and physical capacity to the Kingdom of Israel,\n which consciousness and physical capacity is subsequently borrowed\n by the Trust’s trustee capacity to facilitate the Trust’s ability to\n function in accord with the Trust’s creation, which is exemplified in\n this Trust Indenture.\n\n ***\n\n SOCIAL SECURITY NUMBER (SSN): The Creator assigned the\n SSN to distinguish this Trust from any other person of a same or\n similar name. Where the names of the Trust and said child are so\n similar as to sound identical and are only distinguishable by\n punctuation and or capitalization in spelling, the SSN so assigned,\n and or any other respective Taxpayer Identification Number (TIN),\n must be used to designate: tax payments, ownership and/or\n acquisition of assets, accounts and/or property held separately by The\n Trust.\n\n ***\n\n VERIFICATION: This instant instrument (hereinafter “Trust\n Indenture”) acknowledges, verifies and secures the nature of the\n relationship SSA created between the parties listed herein. This Trust\n Indenture was generated by the Trust (named above) and presented\n (minus said Schedules) to SSA with a Request for Amendment to\n SSA’s records for this taxpayer (said Trust) to verify the facts of the\n Trust’s creation and existence as related in this formal written Trust\n Indenture.\n\nId. at 1-2 (notations in original; no alterations made). While dated December 17, 2007, the Trust\n\nAgreement purports to reflect the creation of the Trust thirty years’ prior “nunc pro tunc.” Id. at\n\n2. Crummey’s signature appears at the bottom, while the SSA’s agreement is stated to be\n\n\n 4\n\fevidenced by “[a]cts of issuing the Trust’s name and SSN[,] distributing the Social Security Card\n\nto be so held in trust, maintaining [an] open accounting under said SSN, accepting and\n\ndistributing funds in regard to the same, amending the record or by tacit admission to the\n\nsame.” Id. (bold in original).\n\n B. Crummey’s Requests for Amendment\n\n Over the years, Crummey has repeatedly tried to get the SSA to add a copy of the Trust\n\nAgreement to its Master Files.2 Crummey contends that he mailed the first of his three formal\n\nwritten requests for amendment to the SSA on August 17, 2007, the second on December 17,\n\n\n\n\n 2\n The reasons for Crummey’s efforts are not altogether clear from the record. At one\npoint, Crummey claims that the events of September 11, 2001, led him to be “concerned” about\nthe government’s use of SSNs. See Pl.’s Mem. in Supp. of Pl.’s Resp. in Opp’n to Def.’s Mot. to\nDismiss, or in the Alternative, for Summ. J. (“Pl.’s MSJ Opp’n”), ECF No. [11], at 2.\nMeanwhile, public records reflect that Crummey was indicted in the United States District Court\nfor the Southern District of Texas for presenting several false claims for tax returns. See\nIndictment, United States v. Crummey, Criminal Action No. 4:10-cr-00315 (S.D. Tex. May 17,\n2010), ECF No. [1]. When Crummey sought to dismiss the indictment, he apparently attempted\nto use the Trust Agreement as part of his defense. See Def.’s Mot. to Dismiss, Criminal Action\nNo. 4:10-cr-00315 (S.D. Tex. Sept. 28, 2010), ECF No. [66]. Specifically, Crummey argued that\nthe Trust Agreement “proves the SSA admits to creating a trust, assigning it a name similar to\n[his] and assigning it the social security number to uniquely distinguish that trust from any other\npersons (including, but not limited to, him).” Id. at 2. That argument was rebuffed by the district\ncourt, see Min. Entry, United States v. Crummey, Criminal Action No. 4:10-cr-00315 (S.D. Tex.\nSept. 28, 2010), ECF No. [67], and a jury found Crummey guilty on six counts of presenting\nfalse claims in violation of 18 U.S.C. § 287, see Verdict Form, United States v. Crummey,\nCriminal Action No. 4:10-cr-00315 (S.D. Tex. Sept. 29, 2010), ECF No. [75]. According to\nCrummey, his “theory of defense in his criminal trial was not allowed to be determined by the\njury because the jury was prohibited from receiving any instructions pertaining to said defense.”\nPl.’s Stmt. of Disputed Material Facts in Support of Pl.’s Resp. in Opp’n to Def.’s Mot. to\nDismiss, or in the Alternative, for Summ. J. (“Pl.’s MSJ Stmt.”), ECF No. [11], ¶ 15. Whatever\nthe case may be, the reasons behind Crummey’s requests for amendment are largely immaterial\nfor purposes of resolving the pending motions.\n\n 5\n\f2007, and the third on March 3, 2009. See Verified Compl. (“Compl.”), ECF No. [1], at 23; Pl.’s\n\nMSJ Stmt. ¶¶ 2-4; Decl. of Brent Edward Crummey (“Crummey Decl.”), ECF No. [11-2], ¶ 13.\n\nEach request asked the SSA to amend its records to add the Trust Agreement to the SSA’s\n\nMaster Files, or to somehow incorporate its contents therein. See Pl.’s MSJ Stmt. ¶ 5.4\n\n The SSA has no record of receiving any of these three requests. See Wiggins Decl. ¶¶ 18-\n\n19, 22. While Crummey points to mailing receipts that he claims correspond to each request,5\n\nthe receipts indicate that the requests were all mailed to this address:\n\n Social Security Commissioner\n SSI Administration\n 1500 Woodlawn Drive\n Baltimore, MD 21241\n\nCrummey Decl. Ex. 3. Regulations, meanwhile, expressly provide that any request to amend the\n\nSSA’s Master Files should be directed to this address:\n\n Director, Division of Enumeration Verification and Death Alerts\n Office of Earnings, Enumeration, and Administrative Systems\n Social Security Administration\n 6401 Security Boulevard\n Baltimore, MD 21235\n\n\n 3\n Because the paragraphs in Crummey’s Complaint are not sequentially numbered, the\nCourt will refer to the page numbers. However, because the Complaint is not paginated, the\nCourt will refer to the page numbers generated by the Court’s CM-ECF System.\n 4\n Because neither party has actually introduced the written requests into the record, the\nCourt cannot say with certitude how the requests were worded. However, the Court will assume\nthat Crummey requested that the SSA add the Trust Agreement itself in the Master Files or,\nalternatively, to somehow incorporate the information contained therein.\n 5\n Although Crummey claims otherwise, the referenced exhibit does not actually include a\nmailing receipt for a request dated August 17, 2007. Nonetheless, for purposes of resolving the\npending motions, the Court will assume that a similar mailing receipt exists. Because Crummey\nconcedes that this request was sent to the same address as the others, whether or not a mailing\nreceipt exists for this request is, for reasons to be explained shortly, immaterial.\n\n 6\n\f20 C.F.R. § 401.65(a); Notice of Proposed Routine Use, 75 Fed. Reg. 82,121, 82,126 (Dec. 29,\n\n2010). Despite this disparity, the SSA has a general policy favoring the rerouting of requests\n\nfrom one office to another. See Crummey Decl. Ex. 2.6\n\n C. Crummey’s Requests for Access\n\n In addition to his three requests for amendment, Crummey has made a series of requests,\n\nsome in writing and others in person, through which he sought access to certain records claimed\n\nto be in the SSA’s possession, custody, or control. Crummey claims that he made these requests\n\nover a period spanning more than a year, beginning on or about February 20, 2009 and\n\nconcluding on or about July 29, 2010. See Compl. at 2; Pl.’s MSJ Opp’n at 7-9; Pl.’s MSJ Stmt.\n\n¶¶ 6-7, 23, 25; Crummey Decl. ¶¶ 21, 24, 27, 29, 35.7 Through these requests, Crummey sought\n\nthe following:\n\n • A copy of his original SSN application, referred to as an “SS-5”;\n\n\n 6\n It is unclear whether this policy was in effect at the time Crummey made his requests\nfor amendment, but for purposes of resolving the pending motions, the Court will assume this to\nbe the case.\n 7\n Crummey’s papers are, unfortunately, very far from the model of clarity in delineating\nprecisely when each of the requests were allegedly sent and in what form. In the Complaint, he\ndescribes only a written request dated February 20, 2009, an attempted in-person visit to the\nSSA’s offices in Baltimore, Maryland, on or about July 29, 2009, and an unspecified number of\n“other formal written requests for copies of [the SSA’s] records.” Compl. at 2-3. In subsequent\npapers, Crummey alleges that he sent written requests on or about July 23, 2009, and on or about\nJune 24, 2010, and made another attempted in-person visit, this time to the SSA’s offices in\nPhoenix, Arizona, on or about March 3, 2009. See Pl.’s MSJ Opp’n at 7-9; Pl.’s MSJ Stmt. ¶¶ 6-\n7, 23, 25; Crummey Decl. ¶¶ 21, 24, 27, 29, 35. At least one of these requests appears to be, in\nactuality, a subpoena issued in the aforementioned criminal action. See Wiggins Decl. Ex. J. Of\nthese various requests, the SSA has a record of receiving only a written request for records dated\nJanuary 18, 2010 and the subpoena seeking essentially the same records dated June 24, 2010.\nSee Wiggins Decl. ¶¶ 3, 11 & Exs. A, J. The SSA has copies of some of Crummey’s other\nrequests because they were attached as exhibits to correspondence that was actually received.\n\n\n 7\n\f • A copy of his original SSC;\n\n • A copy of the Trust Agreement;\n\n • Copies of each of his prior requests; and\n\n • Copies of the SSA’s responses to his prior requests.\n\nSee Pl.’s MSJ Opp’n at 6; Pl.’s MSJ Stmt. ¶ 16; Wiggins Decl. ¶ 3, Exs. A, C-D, J, M, & O. On\n\nSeptember 2, 2010, the SSA produced to Crummey certified copies of records responsive to his\n\nrequests. See Wiggins Decl. ¶ 16 & Ex. O; Decl. of Dawn S. Wiggins (“Suppl. Wiggins Decl.”),\n\nECF No. [13-1], ¶ 5. On September 9, 2010, the SSA produced to Crummey a second set of\n\ncertified copies. See Suppl. Wiggins Decl. ¶¶ 6-7. Crummey maintains that the SSA’s\n\nproductions were insufficient because some records were missing and others were of poor\n\nquality.\n\n B. Procedural History\n\n Crummey, who is proceeding pro se, commenced this action on September 15, 2010. See\n\nCompl. Crummey describes himself as “the man who lends consciousness and physical capacity\n\nto the Social Security Account Number Card” assigned to him by the SSA. Id. at 1. Before this\n\nCourt, Crummey claims that the SSA violated the Privacy Act and/or FOIA by denying his\n\nrequests to amend the SSA’s Master Files to include a copy of the Trust Agreement and by\n\nfailing to respond in full to his requests for access to records. Id. at 2-3.\n\n On February 18, 2011, the SSA filed its Motion for Summary Judgment. See Def.’s\n\nMem. in Supp. of its Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s MSJ Mem.”),\n\nECF No. [9]. Even though the notice accompanying the SSA’s motion did the same, the Court\n\nadvised Crummey of his obligation to respond to the SSA’s motion. See Order (Feb. 22, 2011),\n\n\n 8\n\fECF No. [10], at 1-2 (citing Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988); Neal v. Kelly, 963\n\nF.2d 453 (D.C. Cir. 1992)). On March 15, 2011, Crummey filed his opposition. See Pl.’s MSJ\n\nOpp’n. On March 29, 2011, the SSA filed a reply. See Def.’s Reply in Supp. of its Mot. to\n\nDismiss or, in the Alternative, for Summ. J. (“Def.’s MSJ Reply”), ECF No. [13]. The SSA’s\n\nMotion for Summary Judgment was at that point fully briefed and ripe for adjudication.\n\n On April 8, 2011, Crummey filed his Motion to File a Surreply, along with a proposed\n\nsurreply and an accompanying declaration. See Pl.’s Mot. to File Surreply (“Pl.’s MFS Mem.”),\n\nECF No. [14]; Pl.’s Surreply to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. (“Pl.’s\n\nProposed MSJ Surreply”), ECF No. [14-2]; Second Decl. of Brent Edward Crummey (“Proposed\n\nSuppl. Crummey Decl.”), ECF No. [14-2]. On April 25, 2011, the SSA filed an opposition. See\n\nDef.’s Opp’n to Pl.’s Surreply, ECF No. [16]. Crummey never filed a reply, timely or untimely.\n\nThe motion is therefore fully briefed and ripe for adjudication.\n\n On May 5, 2011, Crummey filed a document that he styled as a “First Motion for Judicial\n\nNotice,” in which he attempted to supplement his arguments in opposition to the SSA’s Motion\n\nfor Summary Judgment. See Pl.’s First Mot. for Judicial Notice, ECF No. [17]. However, on\n\nMay 23, 2011, after the SSA had filed an opposition to the motion, Crummey asked this Court to\n\nstrike his motion from the record, claiming that he “recognized the errors in style and\n\npresentment of facts and law for which [he] sought this Court to take judicial notice.” Pl.’s Mot.\n\nto Strike Pl.’s First Mot. for Judicial Notice, ECF No. [20]. On May 31, 2011, the Court granted\n\nCrummey’s request and ordered that his “First Motion for Judicial Notice” be stricken from the\n\nrecord. See Order (May 31, 2011), ECF No. [21].\n\n Undeterred, on May 23, 2011, Crummey filed a document that he styled as a “Second\n\n\n 9\n\fMotion for Judicial Notice,” in which he again attempted to supplement his arguments in\n\nopposition to the SSA’s Motion for Summary Judgment. See Pl.’s Second Mot. for Judicial\n\nNotice (“Pl.’s MJN2 Mem.”), ECF No. [19]. On June 3, 2011, the SSA filed a partial opposition.\n\nSee Def.’s Opp’n in Part to Pl.’s Second Mot. for Judicial Notice (“Def.’s MJN2 Opp’n”), ECF\n\nNo. [22]. Crummey never filed a reply, timely or untimely. The motion is therefore fully briefed\n\nand ripe for adjudication.\n\n III. LEGAL STANDARD\n\n Summary judgment is appropriate where “the movant shows that there is no genuine\n\ndispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” Fed.\n\nR. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar\n\nsummary judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes\n\nover facts that might affect the outcome of the suit under the governing law will properly\n\npreclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255\n\n(1986). Nor may summary judgment be avoided based on just any disagreement as to the\n\nrelevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible\n\nevidence for a reasonable trier of fact to find for the non-movant. Id.\n\n In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to\n\nspecific parts of the record—including deposition testimony, documentary evidence, affidavits or\n\ndeclarations, or other competent evidence—in support of its position, or (b) demonstrate that the\n\nmaterials relied upon by the opposing party do not actually establish the absence or presence of a\n\ngenuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual\n\nbasis in the record cannot create a genuine dispute sufficient to survive summary judgment.\n\n\n 10\n\fAss’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).\n\nMoreover, where “a party fails to properly support an assertion of fact or fails to properly address\n\nanother party’s assertion of fact,” the district court may “consider the fact undisputed for\n\npurposes of the motion.” Fed. R. Civ. P. 56(e).\n\n When faced with a motion for summary judgment, the district court may not make\n\ncredibility determinations or weigh the evidence; instead, the evidence must be analyzed in the\n\nlight most favorable to the non-movant, with all justifiable inferences drawn in its favor. Liberty\n\nLobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are\n\nsusceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.\n\nHartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine\n\n“whether the evidence presents a sufficient disagreement to require submission to a jury or\n\nwhether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477\n\nU.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is\n\nsome metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith\n\nRadio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not\n\nsufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50\n\n(citations omitted).\n\n While “[a]ll pleadings shall be so construed as to do substantial justice,” Fed. R. Civ. P.\n\n8(f), pleadings filed by a party proceeding pro se must be “liberally construed,” Erickson v.\n\nPardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation marks omitted). For example, where a\n\npro se party has filed multiple submissions, the district court must generally consider those\n\nfilings together and as a whole. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir.\n\n\n 11\n\f1999); Sieverding v. U.S. Dep’t of Justice, 693 F. Supp. 2d 93, 101 n.2 (D.D.C. 2010). However,\n\neven with the liberality afforded pro se pleadings, the district court “need not accept inferences\n\nunsupported by the facts alleged in the complaint or legal conclusions cast in the form of factual\n\nallegations.” Kaemmerling v. Lappin, 553 F.3d 669, 667 (D.C. Cir. 2008) (quotation marks\n\nomitted).\n\n IV. DISCUSSION\n\n The Court’s discussion here is organized according to the three motions currently pending\n\nbefore the Court: Part IV.A addresses the SSA’s [9] Motion for Summary Judgment; Part IV.B\n\naddresses Crummey’s [14] Motion to File a Surreply; and Part IV.C addresses Crummey’s [19]\n\nSecond Motion for Judicial Notice.\n\n A. The SSA’s Motion for Summary Judgment\n\n The Court’s discussion of the SSA’s [9] Motion for Summary Judgment is organized into\n\ntwo parts: Part IV.A.1 addresses Crummey’s requests for amendment; and Part IV.A.2 addresses\n\nCrummey’s requests for access.\n\n 1. Crummey’s Requests for Amendment\n\n Under the Privacy Act, an agency must “maintain all records which are used by the\n\nagency in making any determination about any individual with such accuracy . . . and\n\ncompleteness as is reasonably necessary to assure fairness to the individual in the determination.”\n\n5 U.S.C. § 552a(e)(5). If an individual believes that a record pertaining to him is not “accurate . .\n\n. or complete,” he may “request amendment of [the] record.” Id. § 552a(d)(2). If the request is\n\ndenied, he may seek de novo judicial review. Skinner v. U.S. Dep’t of Justice, 584 F.3d 1093,\n\n1096 (D.C. Cir. 2009) (citing 5 U.S.C. § 552(g)(1)(A), (g)(2)(A)), cert. denied, __ U.S. __, 131\n\n\n\n 12\n\fS. Ct. 72 (2010). In that eventuality, the reviewing court must undertake “a fresh, independent\n\ndetermination of ‘the matter’ at stake.” Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir.\n\n1987) (en banc).\n\n In this case, Crummey claims that the SSA improperly denied his August 17, 2007,\n\nDecember 17, 2007, and March 3, 2007 requests for amendment, each of which requested that\n\nthe SSA include a copy of the Trust Agreement in its Master Files. See Compl. at 3 (citing 5\n\nU.S.C. § 552a(d)(2), (e)(5), (g)). For at least three reasons, any one of which is sufficient to\n\nwarrant dismissal on its own, Crummey’s position is without merit.\n\n i. Crummey Has Failed to Show that the SSA’s Records Are\n Inaccurate or Incomplete\n\n Under the Privacy Act, an agency need only maintain records “with such accuracy . . . and\n\ncompleteness as is reasonably necessary to assure fairness.” 5 U.S.C. § 552a(e)(5). In this case,\n\nCrummey has failed to present even a scintilla of competent evidence suggesting that the SSA’s\n\nrecords are, in actuality, materially inaccurate or incomplete. Indeed, in order to reach that\n\nconclusion, the fact-finder would first have to accept two premises, neither of which is tenable.\n\n First, the fact-finder would have to accept that the SSA in fact created the Trust by\n\nassigning Crummey an SSN and SSC. When this same contention was last presented to this\n\nCourt, it was resoundingly rejected. See Van De Berg v. Social Sec. Admin., 254 F.R.D. 144,\n\n146-47 (D.D.C. 2008) (describing plaintiff’s argument that the SSA created a trust that borrowed\n\nhis consciousness and physical capacity when it provided him a social security card as “clearly\n\nbaseless” and “frivolous”), aff’d, No. 08-5528, 2009 WL 2568738 (D.C. Cir. Apr. 28, 2009) (per\n\ncuriam), cert. denied, __ U.S. __, 130 S. Ct. 1146 (2010). Other courts have done the same. See,\n\ne.g., Lizalek v. Comm’r of Internal Revenue, 97 T.C.M. (CCH) 1639, 2009 WL 1530160, at *4\n\n 13\n\f(T.C. June 1, 2009); Bond v. Comm’r of Revenue, 691 N.W.2d 831, 837-38 (Minn.), cert. denied,\n\n545 U.S. 1116 (2005). The reason is simple: the SSA does not manifest the intention required to\n\ncreate a trust merely by assigning individuals an SSN and SSC. See Restatement (Second) of\n\nTrusts §§ 23, 25 (1959).\n\n Second, even assuming, arguendo, that a trust relationship was somehow created when\n\nthe SSA assigned Crummey an SSN and SSC, the fact-finder would have to accept a further\n\nfactual premise before concluding that the SSA’s records are inaccurate or incomplete.\n\nHowever, the touchstone for assigning SSNs, and by extension the fundamental underpinning of\n\nthe Master Files, is “true identity.” See 42 U.S.C. § 405(c)(2)(B)(ii); 20 C.F.R. §§ 422.103(c)(1),\n\n422.107(a), 422.110(a). Accordingly, the fact-finder would have to conclude that the Trust, and\n\nnot Crummey, is the true and actual holder of the SSN. However, this conclusion is foreclosed\n\nby the statutory and regulatory scheme, which makes it clear that only natural persons are eligible\n\nto be assigned an SSN. See 42 U.S.C. § 405(c)(2); 20 C.F.R. §§ 422.103(a), (b)(1), (d),\n\n422.104(a); 26 C.F.R. § 31.6011(b)-2(a)(ii)-(iii).\n\n Without concluding both that the SSA created the Trust and that the Trust was the actual\n\nholder of the SSN, there are no grounds for concluding that the SSA’s records, which associate\n\nthe SSN with Crummey, are inaccurate or incomplete. Therefore, based on the record created by\n\nthe parties, there can be no genuine dispute that the SSA has maintained its records “with the\n\naccuracy necessary to assure fairness.” Doe, 821 F.2d at 699 n.13. On this basis alone, the SSA\n\nis entitled to summary judgment in connection with Crummey’s requests for amendment.\n\n\n\n\n 14\n\f ii. The Trust Document Does Not Include Information that is\n Relevant and Necessary to Accomplish a Purpose of the SSA\n\n An agency may “maintain in its records only such information about an individual as is\n\nrelevant and necessary to accomplish a purpose of the agency required to be accomplished by\n\nstatute or by executive order of the President.” 5 U.S.C. § 552a(e)(1). The SSA uses SSNs to\n\nmaintain accurate wage earnings and income records in connection with the administration of\n\nsocial security programs. See 42 U.S.C. § 405(c). SSNs are also used to verify identity, ascertain\n\ntax liability, determine eligibility for public benefits, and establish employment authorization.\n\nJones v. Sullivan, 938 F.2d 801, 803 (7th Cir. 1991). To effectuate these ends, SSNs, and by\n\nextension the information contained in the Master Files, are oriented towards establishing an\n\nindividual’s “true identity.” See 42 U.S.C. § 405(c)(2)(B)(ii); 20 C.F.R. §§ 422.103(c)(1),\n\n422.107(a), 422.110(a). The concept of “true identity” is fundamental to achieving all these\n\nends. Indeed, the government’s interest in using SSNs as unique identifiers for individuals has\n\nbeen described as “compelling.” Callahan v. Woods, 736 F.2d 1269, 1274 (9th Cir. 1984).\n\nAmending the Master Files to include a copy of the Trust Agreement, or to reflect its contents,\n\nwould require the SSA to maintain information about Crummey that is neither relevant nor\n\nnecessary to accomplishing any purpose of the SSA. If anything, it would undermine the\n\nfundamental premise underlying the SSA’s SSN-system. Because the SSA is not permitted to\n\nretain information that is not necessary and relevant to a valid purpose, the SSA is entitled to\n\nsummary judgment in connection with Crummey’s requests for amendment on this separate,\n\nindependent ground.\n\n\n\n\n 15\n\f iii. The Information in the Trust Agreement Does Not Correspond\n to Any Record Maintained in the SSA’s Master Files\n\n An agency is not required to add information to its systems of records just because an\n\nindividual has requested as much. See Manuel v. Veterans Admin. Hosp., 857 F.2d 1112, 1118\n\n(6th Cir. 1988), cert. denied, 489 U.S. 1055 (1989); Wren v. Heckler, 744 F.2d 86, 89 (10th Cir.\n\n1984). Rather, an individual’s request for amendment must relate to an existing “record” that is\n\nmaintained within one of the agency’s “system[s] of records.” 5 U.S.C. § 552a(d)(2). A\n\n“record” is defined as “any item, collection, or grouping of information” and a “system of\n\nrecords” is defined as “a group of records . . . from which information is retrieved by . . . [an]\n\nidentifying particular assigned to the individual.” Id. § 552a(a)(4)-(5).\n\n In this case, it is undisputed that the only “system of records” relevant to Crummey’s\n\nrequests for amendment is the SSA’s Master Files, as Crummey has steadfastly insisted that he\n\nhas a right to require inclusion of the Trust Agreement in the SSA’s Master Files. Therefore, the\n\nonly remaining question is whether the Trust Agreement or its contents correspond to a “record”\n\nin the SSA’s Master Files—in other words, whether it corresponds to an “item, collection, or\n\ngrouping of information” in the Master Files. That question must be answered in the negative.\n\n The following description identifies the universe of information contained within the\n\nSSA’s Master Files:\n\n This system contains all the information [the SSA] receive[s] on the\n applications for SSNs (e.g., name, date and place of birth, sex, both\n parents’ names, and race/ethnicity data). If the application for an\n SSN is for a person under the age of 18, [the SSA] also maintain[s]\n the SSNs of the parents. The system also contains:\n\n • Changes in the information on the applications the SSN\n holders submit;\n\n\n 16\n\f • Information from applications supported by evidence [the\n SSA] suspect[s] or determine[s] to be fraudulent, along with\n the mailing address of the persons who filed such applications\n and descriptions of the documentation they submitted;\n\n • Cross-references when multiple numbers have been issued to\n the same person;\n\n • A form code that identifies the Form SS-5 (Application for a\n Social Security Card Number) as the application the person\n used for the initial issuance of an SSN, or for changing the\n identifying information (e.g., a code indicating original\n issuance of the SSN, or that [the SSA] assigned the person’s\n SSN through [its] enumeration at birth program);\n\n • A citizenship code that identifies types of questionable data\n or special circumstances concerning an application for an\n SSN (e.g., false identity; illegal alien; scrambled earnings);\n\n • An indication that an SSN was assigned based on harassment,\n abuse, or life endangerment; and\n\n • An indication that a person has filed a benefit claim under a\n particular SSN.\n\nNotice of Proposed Routine Use, 75 Fed. Reg. 82,121, 82,123 (Dec. 29, 2010). None of the\n\ninformation set forth in the Trust Agreement falls within this universe. To the extent that it does\n\n(i.e., Crummey’s name and SSN), the SSA’s Master Files already reflect that information.\n\nIndeed, of the categories of information included in the Master Files, the only arguably relevant\n\ncandidate here is “[i]nformation from applications supported by evidence that [the SSA]\n\nsuspect[s] or determine[s] to be fraudulent.” Id. Obviously, Crummey does not suggest that the\n\nSSA should have amended its Master Files to reflect the apparently fraudulent nature of the Trust\n\nAgreement. Even if he did, that category only pertains to information “from applications,”\n\nsomething that does not apply to the Trust Agreement. In short, the Trust Agreement and the\n\ninformation contained therein do not correspond to an “item, collection, or grouping” of\n\n\n 17\n\finformation in the Master Files. Cf. Wiggins Decl. ¶ 9 (declaring that the Trust Agreement does\n\nnot pertain to a “data element” in the Master Files).\n\n Crummey purports to dispute this fact on the basis that a friend of his, Alexander Doak\n\n(“Doak”), allegedly managed to get the SSA to include a copy of an analogous agreement, one\n\npertaining to him, in its Master Files. See Crummey Decl. ¶¶ 43, 51. Crummey includes with his\n\nopposition what he claims is a copy of that agreement, along with a written certification from the\n\nSSA indicating that the agreement came from its records. See id. Ex. 7. However, contrary to\n\nCrummey’s assertion, the written certification does not indicate that the agreement was\n\nmaintained in the SSA’s Master Files. Rather, it merely states that the agreement was in the\n\nSSA’s “custody,” without any specification whatsoever as to which system or systems of records\n\nfrom which it might have originated. Id. Meanwhile, the SSA has submitted a declaration by the\n\ncustodian of the records indicating that the agreement produced to Doak was maintained not in\n\nits Master Files but its eFOIA system of records.8 See Suppl. Wiggins Decl. ¶ 4. Indeed, when\n\nthe SSA produced a copy of the Trust Agreement to Crummey, which was indisputably\n\nmaintained not in the SSA’s Master Files but rather its eFOIA system, it provided an identical\n\nwritten certification. See Wiggins Decl. Ex. O. Simply put, the written certification allegedly\n\nproduced by the SSA to Doak does not evidence that the SSA’s Master Files include an “item,\n\ncollection, or grouping” of information corresponding to the Trust Agreement. It is patently\n\ninadequate to create a genuine dispute as to the sort of information the SSA maintains in the\n\n\n\n\n 8\n The eFOIA records system collects information pertaining to FOIA requests received\nby the SSA. See Notice of Proposed Routine Use, 70 Fed. Reg. 3,571, 3,571 (Jan. 25, 2005).\n\n 18\n\fMaster Files.9\n\n Based on the record created by the parties, no reasonable fact-finder could conclude that\n\nthe SSA’s Master Files include an “item, collection, or grouping” of information corresponding\n\nto the Trust Agreement. As a result, Crummey’s requests for amendment did not, as they must,\n\nrelate to an existing “record” within the SSA’s “system of records.” 5 U.S.C. § 552a(d)(2). For\n\nthis separate, independent reason, the SSA is entitled to summary judgment in connection with\n\nCrummey’s requests for amendment.\n\n 2. Crummey’s Requests for Access\n\n Under the Privacy Act, an individual may request “access to his record or to any\n\ninformation pertaining to him which is contained in the system” and “have a copy made . . . in a\n\nform comprehensible to him.” 5 U.S.C. § 552a(d)(1). Similarly, FOIA requires an agency to\n\nmake “records promptly available to any person” in any “readily reproducible” format upon\n\nreceiving a request “reasonably describ[ing] such records.” Id. § 552(a)(3)(A)-(B). In this case,\n\nCrummey claims that the SSA violated the Privacy Act and/or FOIA by denying him access to\n\ncertain records. See Compl. at 3 (citing 5 U.S.C. §§ 552(a)(3)(A)-(B), (a)(4)(B), 552a(d)(1),\n\n(g)(3)(A)). Specifically, Crummey seeks the following records:\n\n\n\n 9\n Nor can Crummey remedy this inadequacy merely by declaring that Mona Finch\n(“Finch”), who is alleged to be an SSA employee, “reassured Doak that the Doak Amendment\nwas stored in the Master Files.” Crummey Decl. ¶ 51. This proposition rests on two alleged out-\nof-court statements, both of which are offered to prove the truth of the matter asserted: the first\nby Finch to Doak; and the second by Doak to Crummey. See Fed. R. Evid. 801(c). Even\nassuming, arguendo, that Finch’s alleged statement to Doak was made in the scope of her\nemployment and therefore admissible as a party admission, see Fed. R. Evid. 801(d)(2)(D),\nDoak’s statement to Crummey would still be inadmissible hearsay. See Greer v. Paulson, 505\nF.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for nothing on summary\njudgment.”) (quotation marks omitted).\n\n 19\n\f • A copy of his original SSN application, referred to as an SS-5;\n\n • A copy of his original SSC;\n\n • A copy of the Trust Agreement;\n\n • Copies of each of his prior requests; and\n\n • Copies of the SSA’s responses to his prior requests.\n\nSee Pl.’s MSJ Opp’n at 6; Pl.’s MSJ Stmt. ¶ 16; Wiggins Decl. ¶ 3, Exs. A, C-D, J, M, & O.10\n\n However, because Crummey has already received all the records responsive to his\n\nrequests that are in the SSA’s possession, custody, or control, his requests for access are moot\n\nand the associated relief unavailable. See Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)\n\n(“[H]owever fitful or delayed the release of information . . . may be, once all requested records\n\n\n 10\n The Court is aware that Crummey’s letter to the SSA dated February 20, 2009, which\nthe SSA has no record of ever receiving, sought multiple copies of some records—specifically,\nCrummey’s original SSN application and the Trust Agreement. See Wiggins Decl. ¶ 21 & Ex. A.\nMeanwhile, in his letter dated January 18, 2010, the first letter requesting access to records that\nthe SSA does have a record of receiving, Crummey requests only one copy of each record. See\nid. ¶ 3 & Ex. A. So far as the Court can tell, once the SSA informed Crummey that it did not\nmaintain a copy of his Trust Agreement in its Master Files, he abandoned his requests to obtain\nmultiple copies of certain records. Before this Court, Crummey has never suggested that the\nSSA has failed to produce a sufficient number of records (at least not with any meaningful\nmeasure of clarity). Rather, his complaints have focused on the quality of the documents that the\nSSA has produced and his allegations that some records are missing altogether. Regardless,\naccording to the record before the Court, the only fee that Crummey has ever paid for his myriad\nrequests was in the amount of $50.00. See id. Ex. N. While that amount was actually slightly\nless than what was required to cover the requisite fees for the records and certifications produced\nby the SSA on September 2, 2010, the SSA nonetheless accepted the amount and elected not to\nseek full payment from Crummey. See id. ¶¶ 16-17. Moreover, on September 9, 2010, the SSA\nprovided Crummey with another full set of certified records upon his request, apparently free of\ncharge. See Suppl. Wiggins Decl. ¶¶ 6-7. Which is just to say that, even if Crummey had sought\nadditional copies of certain records, he has not provided the requisite payment. For its part, the\nSSA has no objection to providing Crummey with additional certified copies of records in its\npossession, custody, or control provided Crummey agrees to pay the appropriate fees. See Def.’s\nStmt. of Material Facts Not in Dispute, ECF No. [9], ¶ 26. While Crummey is certainly free to\ntake the SSA up on its offer, that matter is not properly before the Court.\n\n 20\n\fare surrendered, federal courts have no further statutory function to perform.”); see also Boyd v.\n\nChertoff, 540 F. Supp. 2d 210, 216 (D.D.C. 2008). On September 2, 2010, the SSA provided\n\nCrummey with certified copies of his original SSN application, his prior requests, and the SSA’s\n\nresponses to those requests. See Wiggins Decl. ¶ 16 & Ex. O; Suppl. Wiggins Decl. ¶ 5. True,\n\nthe SSA did not produce a copy of Crummey’s original SSC, but for a good reason: the SSA does\n\nnot maintain copies of SSCs after they are issued to individuals. See Wiggins Decl. ¶ 12. The\n\nSSA also produced a copy of the Trust Agreement because it had been retained in the SSA’s\n\neFOIA system as an attachment to one of Crummey’s written requests.11 See id. Ex. O. On\n\nSeptember 9, 2009, the SSA produced a second certified set of its production. See Suppl.\n\nWiggins Decl. ¶¶ 6-7.\n\n Crummey claims that the SSA’s productions are insufficient because the SSA failed to\n\nproduce copies of all of the many prior requests he allegedly made over the years. However,\n\neven assuming, arguendo, that Crummey sent, and the SSA actually received, each of the several\n\nrequests identified at one point or another in his pleadings, that mere fact would not render the\n\nSSA’s productions somehow inadequate. In this case, the SSA has submitted sworn declarations\n\nuncontradicted by competent evidence demonstrating that it searched the relevant record systems\n\nand produced the requests and responses that were located. See Wiggins Decl. ¶¶ 8-10, 16, 19-\n\n22; Suppl. Wiggins Decl. ¶¶ 5-7. While Crummey may personally dispute those assertions,12\n\n\n 11\n The SSA did not produce a copy of the Trust Agreement from its Master Files, as no\ncopy is retained in the Master Files. See supra Part IV.A.1.\n 12\n To be clear, Crummey disputes the SSA’s contention that it has produced all the\nrecords responsive to his requests; he has never directly challenged the adequacy of the SSA’s\nsearch for records before this Court. In any event, because the adequacy of a search “is generally\ndetermined not by the fruits of the search, but by the appropriateness of the methods used to carry\n\n 21\n\f“[a]gency affidavits are accorded a presumption of good faith” in this context and cannot be\n\nrebutted by speculation of the sort proffered by Crummey in this case. SafeCard Servs., Inc. v.\n\nSecs. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Significantly, the SSA’s search\n\ncovered those sources that could be “reasonably expected” to produce the very information\n\nsought by Crummey’s requests. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.\n\n1990). Specifically, the SSA searched its eFOIA system, which collects, among other things,\n\n“requests from individuals . . . and copies of [the SSA’s] replies to those requests,” Notice of\n\nProposed Routine Use, 70 Fed. Reg. 3,571, 3,571 (Jan. 25, 2005), and the record stands\n\nuncontradicted by any competent evidence that the SSA has produced all the records that it was\n\nable to locate through its efforts. Viewed from a slightly different perspective, an agency is not\n\nrequired to document an “epic search for the requested records.” Perry, 684 F.2d at 127. Rather,\n\naffidavits that explain in “reasonable detail” the scope and method employed by the agency will\n\n“suffice to demonstrate compliance.” Id. In this case, the SSA has come forward with sufficient\n\nevidence showing that it has produced all responsive records in its possession, custody, or control\n\nlocated after a reasonably diligent search. Because an agency is not required to produce records\n\nthat are not in its possession, custody, or control, see Kissinger v. Reporters Comm. for Freedom\n\nof Press, 445 U.S. 136, 152 (1980), Crummey’s allegations that some records are missing simply\n\ndo not preclude a finding that the SSA has discharged its statutory obligations in this case.\n\n\nout the search,” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), “the\n[mere] fact that a particular document was not found does not demonstrate the inadequacy of a\nsearch,” Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir.), cert.\ndenied, 552 U.S. 1007 (2007). Here, the SSA’s efforts evince, at a bare minimum, that it made a\ngood faith, informed, and reasonable effort to locate the requested records. Crummey’s\nspeculation that certain documents simply must exist does not suffice to raise “substantial doubt”\nas to the reasonableness of the SSA’s search for records. Iturralde, 315 F.3d at 315.\n\n 22\n\f Similarly, Crummey’s contention that the SSA provided him with “poor quality\n\nphotocopies,” Pl.’s MSJ Stmt. ¶ 20, does not suffice to preclude summary judgment in the SSA’s\n\nfavor. While Crummey is correct that a requester is generally entitled to receive legible copies of\n\nresponsive records, see Grove v. Dep’t of Justice, 802 F. Supp. 506, 519 (D.D.C. 1992); Cleary,\n\nGottlieb, Steen & Hamilton v. Dep’t of Health & Human Servs., 844 F. Supp. 770, 779 (D.D.C.\n\n1993), his allegations are insufficient for at least three reasons. First, the district court is rarely\n\nthe proper “forum for an . . . initial assertion of non-compliance on the grounds that [requested]\n\ndocuments are illegible.” Peddie v. Internal Revenue Serv., Civil Action No. 95-2255 (PLF),\n\n1996 WL 571788, at *4 (D.D.C. July 31, 1996), aff’d, No. 96-5226, 1997 WL 411706 (D.C. Cir.\n\nJune 19, 1997) (per curiam). In this case, Crummey has not shown that he raised this issue in a\n\ntimely manner before the SSA. Second, the SSA’s productions were accompanied by written\n\ncertifications attesting that the copies produced to Crummey were the “true and complete copies”\n\nof the records in the SSA’s possession, custody, or control. See Wiggins Decl. Ex. O. Crummey\n\nhas failed to come forward with anything beyond his own speculation and conclusory allegations\n\nthat would suggest that the SSA produced anything other than the best available records in its\n\npossession, custody, or control. Third, and finally, while some of the records annexed to the\n\nparties’ submissions may not be of the greatest quality, an entirely unsurprising fact given that\n\nsome of the records produced by the SSA are facsimiles of facsimiles of documents that are over\n\nthirty years old, they are not illegible.\n\n For the reasons set forth above, the SSA’s Motion for Summary Judgment will be granted\n\nin its entirety.\n\n\n\n\n 23\n\f B. Crummey’s Motion to File a Surreply\n\n Shortly after the SSA’s Motion for Summary Judgment had been fully briefed, Crummey\n\nfiled his [14] Motion to File a Surreply, which the SSA has opposed. For the reasons set forth\n\nbelow, the motion will be denied.\n\n The Local Rules of this Court contemplate that there ordinarily will be at most three\n\nmemoranda associated with any given motion: (i) the movant’s opening memorandum; (ii) the\n\nnon-movant’s opposition; and (iii) the movant’s reply. See LCvR 7. Nonetheless, when the non-\n\nmovant is deprived of the opportunity to contest matters raised for the first time in the movant’s\n\nreply, the non-movant may seek the district court’s leave to file a surreply. Ben-Kotel v. Howard\n\nUniv., 319 F.3d 532, 536 (D.C. Cir. 2003). However, surreplies are generally disfavored, Kifafi\n\nv. Hilton Hotels Retirement Plan, 736 F. Supp. 2d 64, 69 (D.D.C. 2010), and the determination\n\nof whether to grant or deny leave is entrusted to the sound discretion of the district court, Akers v.\n\nBeal Bank, 760 F. Supp. 2d 1, 2 (D.D.C. 2011). When a pro se litigant seeks leave to file a\n\nsurreply, the district court should remain cognizant that parties proceeding without legal\n\nrepresentation are entitled to a certain amount of solicitude in the conduct of litigation, but also\n\nthat such solicitude is not limitless and pro se litigants are not relieved of their obligation to\n\ncomply with the applicable rules. See Slovinic v. Am. Univ., 520 F. Supp. 2d 107, 111 (D.D.C.\n\n2007).\n\n In this case, Crummey identifies two reasons why he believes he should be granted leave\n\nto file a surreply. First, he contends that the SSA “makes several assertions [in its reply] that\n\nmischaracterize and/or misconstrue the facts and relevant law raised by Plaintiff in his\n\nopposition.” Pl.’s MFS Mem. at 1. Second, he contends that the SSA “submitted new factual\n\n\n 24\n\finformation . . . claiming that all the records were produced, as far as it possesses them.” Id.\n\nNeither reason is sufficient to warrant granting Crummey the leave requested.\n\n Crummey’s first argument in favor of granting leave actually reveals exactly why leave\n\nshould not be granted in this case. Crummey concedes that the arguments raised by the SSA in\n\nits reply are in response to “the facts and relevant law raised by [him] in his opposition.” Pl.’s\n\nMFS Mem. at 1. That is, he admits that the arguments in the SSA’s reply fall within the scope of\n\nthe matters he raised in opposition. Where the movant’s reply does not expand the scope of the\n\nissues presented, leave to file a surreply will rarely be appropriate. To the extent the arguments\n\nmade by the SSA in its reply “mischaracterize and/or misconstrue” Crummey’s factual and legal\n\narguments, the Court is more than capable of ascertaining the merits of the parties respective\n\npositions on its own. Simply put, a surreply is not a vehicle for rehashing arguments that have\n\nalready been raised and briefed by the parties. Were that not true, briefing would become an\n\nendless pursuit.\n\n Crummey’s second argument in favor of granting leave rests on his contention that the\n\nSSA “submitted new factual information . . . claiming that all the records were produced, as far\n\nas it possesses them.” Pl.’s MFS Mem. at 1 (citing Def.’s MSJ Reply at 6-8; Suppl. Wiggins\n\nDecl ¶ 6). In support, Crummey points to those portions of the SSA’s reply, and the\n\naccompanying declaration, where the SSA sets forth its position that Crummey’s claims are moot\n\nbecause he has received all the documents to which he is entitled. See Def.’s MSJ Reply at 6-8;\n\nSuppl. Wiggins Decl. ¶ 4. However, Crummey cannot credibly dispute that this same argument\n\nwas raised by the SSA in its opening memorandum and that he responded to the argument, at\n\nsome length, in his opposition. See Def.’s MSJ Mem. at 12-13; Pl.’s MSJ Opp’n at 5-6. The\n\n\n 25\n\fSSA merely revisited the argument in its reply. See Def.’s MSJ Reply at 6-8. In so doing, the\n\nSSA largely rehashed its prior argument, citing to the evidence submitted with its opening\n\nmemorandum.13 See id. In so doing, the SSA did not deprive Crummey of a meaningful\n\nopportunity to respond to its argument such that might warrant granting leave to file a surreply.\n\n In the final analysis, Crummey has simply failed to show the circumstances that would\n\nwarrant granting him leave to file a surreply. Meanwhile, the Court’s review of Crummey’s\n\nproposed surreply, and the accompanying declaration, reveal than neither would be helpful to the\n\nresolution of the SSA’s Motion for Summary Judgment. Even if the Court were to consider\n\nthese materials, the same result would obtain. In fact, if anything, Crummey’s proposed\n\nsubmissions undermine his claimed entitlement to relief. Simply by way of example, Crummey\n\nconcedes in his proposed surreply that only “supporting documentation to clarify the identity of\n\nthe person to whom SSA did, in fact, assign the SSN is relevant and necessary for SSA purposes”\n\nand that “[t]he Master File disclosures are meant to identify the person to whom SSA assigned an\n\nSSN,” Proposed MSJ Surreply at 2, concessions which are all but fatal to his requests for\n\n\n\n 13\n The only addition to the SSA’s argument on reply was a direct response to a factual\nallegation raised by Crummey in his opposition. Specifically, in his opposition, Crummey\nconcedes that the SSA produced a set of records to him on September 2, 2010, but proceeds to\ncomplain that the records were not properly certified. See Pl.’s MSJ Opp’n at 6. In reply, the\nSSA briefly responds to Crummey’s assertion by maintaining that its prior production was\nproperly certified and indicating that, in any event, it promptly produced a second certified copy\nof the records upon Crummey’s request. See Def.’s MSJ Reply at 8; Suppl. Wiggins Decl. ¶ 6.\nWhile Crummey purports to respond to this in his proposed surreply, see Pl.’s Proposed MSJ\nSurreply at 6; Proposed Suppl. Crummey Decl. ¶¶ 8-9, his conclusory denial of the SSA’s factual\nallegations is insufficient to create a genuine dispute on the matter. See Ass’n of Flight\nAttendants-CWA, 564 F.3d at 465-66. In any event, the parties’ dispute is immaterial to the\nresolution of the SSA’s Motion for Summary Judgment, as Crummey’s requests for access are\nmoot in either event because the SSA previously produced a certified copy of those same records\non September 2, 2010. See Wiggins Decl. ¶ 16.\n\n 26\n\famendment. See supra Part IV.A.1. Beyond that, Crummey’s arguments either retread old\n\nground or interject irrelevant and tangential matters that would not assist the Court in rendering a\n\ndecision on the SSA’s Motion for Summary Judgment. Therefore, and because Crummey has\n\nfailed to establish the circumstances that would justify granting leave, the Court will, in an\n\nexercise of its discretion, deny Crummey’s [14] Motion to File a Surreply. In reaching this\n\nconclusion, the Court has taken into account Crummey’s pro se status.\n\n C. Crummey’s Second Motion for Judicial Notice\n\n Crummey’s [19] Second Motion for Judicial Notice asks this Court to take judicial notice\n\nof two policies from the SSA’s Program Operations Manual System, a provision of the Privacy\n\nAct pertaining to requests for amendment, and case law concerning administrative exhaustion.\n\nSee Pl.’s MJN2 Mem. at 1-2. The SSA opposes Crummey’s motion only in part. The SSA does\n\nnot oppose Crummey’s motion insofar as it asks this Court to take into account the existence of\n\nthe two policies, the provision of the Privacy Act, and the case law concerning administrative\n\nexhaustion, but opposes the motion insofar as Crummey seeks to supplement his arguments in\n\nopposition to the SSA’s Motion for Summary Judgment. See Def.’s MJN2 Opp’n at 2.\n\n The motion will be granted in part and denied in part. Specifically, given the absence of\n\nopposition on the SSA’s part, the motion will be granted insofar as Crummey asks this Court to\n\ntake into account the materials and authorities cited in his motion. The Court has considered\n\nthose materials and authorities in the course of evaluating the merits of the SSA’s Motion for\n\nSummary Judgment, but has found them to be irrelevant and tangential to the issues presented.\n\nMeanwhile, the motion will be denied insofar as Crummey asks this Court to take into account\n\nthe argumentation in his Second Motion for Judicial Notice. In this regard, Crummey’s Second\n\n\n 27\n\fMotion for Judicial Notice is a thinly veiled surreply, but Crummey makes no attempt to\n\nestablish the circumstances that would justify granting leave to file a surreply. Requests for\n\njudicial notice, notices of supplemental authority, and the like, cannot be used as a means for\n\ncircumventing the showing that is required for securing leave to file a surreply. In this case,\n\nCrummey’s arguments are all directed towards responding to arguments that were first raised by\n\nthe SSA in its opening memorandum, meaning that he was not “unable to contest matters\n\npresented to the court for the first time in the last scheduled pleading.” Ben-Kotel, 319 F.3d at\n\n536 (quotation marks omitted). The motion will therefore be denied to the extent Crummey\n\nseeks to supplement his arguments in opposition to the SSA’s Motion for Summary Judgment.\n\nIn any event, even if the Court were to consider Crummey’s arguments, they would not warrant a\n\ndifferent result on the SSA’s Motion for Summary Judgment. Just as Crummey’s materials and\n\nauthorities are irrelevant and tangential to the issues presented, so are his arguments.\n\n V. CONCLUSION\n\n For the reasons set forth above, the Court will grant the SSA’s [9] Motion for Summary\n\nJudgment in its entirety. Crummey’s [14] Motion to File a Surreply will be denied. Crummey’s\n\n[19] Second Motion for Judicial Notice will be granted-in-part and denied-in-part; specifically,\n\nthe motion will be granted insofar as Crummey asks this Court to take into account the materials\n\nand authorities cited in his motion, and the motion will be denied to the extent Crummey seeks to\n\nsupplement his arguments in opposition to the SSA’s Motion for Summary Judgment. Finally,\n\nthis action will be dismissed in its entirety. An appropriate Order accompanies this\n\nMemorandum Opinion.\n /s/\n COLLEEN KOLLAR-KOTELLY\n United States District Judge\n\n 28\n\f", "ocr": false, "opinion_id": 2664084 } ]

[ "610 F.3d 747", "391 U.S. App. D.C. 362" ]

[ { "author_str": "Griffith", "per_curiam": false, "type": "010combined", "page_count": 5, "download_url": "http://pacer.cadc.uscourts.gov/common/opinions/201007/08-5379-1253285.pdf", "author_id": null, "opinion_text": "\n610 F.3d 747 (2010)\nJUDICIAL WATCH, INC., Appellee\nv.\nBUREAU OF LAND MANAGEMENT, Appellant.\nNo. 08-5379.\nUnited States Court of Appeals, District of Columbia Circuit.\nArgued April 19, 2010.\nDecided July 6, 2010.\n*748 Michael E. Robinson, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Leonard Schaitman, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.\nMichael Bekesha argued the cause for appellee. With him on the brief were Paul J. Orfanedes and James F. Peterson.\nBefore: HENDERSON, TATEL and GRIFFITH, Circuit Judges.\nOpinion for the Court filed by Circuit Judge GRIFFITH.\nGRIFFITH, Circuit Judge.\nThe Bureau of Land Management appeals an award of attorneys' fees to Judicial Watch, Inc. in an action brought under the Freedom of Information Act. For the reasons set forth below, we reverse the decision of the district court and vacate the fee award.\n\nI.\nIn March 2007, Judicial Watch requested records of communications between the Bureau and the Nevada congressional delegation about a transaction involving federal lands. When the Bureau failed to produce the documents, Judicial Watch sought to compel their disclosure in a FOIA suit filed in the district court in September 2007. The Bureau voluntarily turned over thirty-five pages of responsive documents later that month. At Judicial Watch's request, the Bureau also conducted a supplemental search for additional relevant documents. When that search proved fruitless, Judicial Watch elected not to proceed with its lawsuit. In January 2008, the parties filed a joint stipulation asking the district court to enter a judgment *749 in favor of the agency. In the stipulation, Judicial Watch reserved the right to request attorneys' fees.\nOn December 31, 2007, after the Bureau's disclosure of the requested records but before the filing of the stipulation, the President signed into law the OPEN Government Act of 2007. See Pub.L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. III 2009)) [hereinafter 2007 Act]. Before the 2007 Act took effect, only FOIA plaintiffs who had \"`been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree,\" could recover attorneys' fees. Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 457 (D.C.Cir.2002); see Davis v. DOJ, No. 09-5189, 610 F.3d 750, 2010 WL 2651297 (D.C.Cir. July 6, 2010). The 2007 Act made fee awards permissible not only when the litigation results in \"a judicial order, or an enforceable written agreement or consent decree,\" 5 U.S.C. § 552(a)(4)(E)(ii)(I) (Supp. III 2009), but also when the lawsuit brings about \"a voluntary or unilateral change in position by the agency,\" so long as the FOIA claim is \"not insubstantial,\" id. § 552(a)(4)(E)(ii)(II).\nAfter the district court entered judgment for the Bureau, Judicial Watch moved for attorneys' fees. Because Judicial Watch was not eligible for a fee award under the old standard, its motion for attorneys' fees was based on the 2007 Act. The Bureau opposed the motion, arguing that the Act could not be applied retroactively to increase the government's liability for conduct that took place before it became law. The district court disagreed and awarded Judicial Watch $3,605.57. Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F.Supp.2d 159, 166-72, 176 (D.D.C.2008).\nWhile the Bureau's appeal was pending, we held in Summers v. Department of Justice that the 2007 Act cannot be applied retroactively. 569 F.3d 500, 503 (D.C.Cir.2009). The Bureau moved for summary reversal of the district court's decision in light of Summers. We denied the motion in order to consider more fully Judicial Watch's argument that applying the new statute to its fee request raised no retroactivity concerns because the parties settled their dispute after the new law took effect. We have jurisdiction to review the award under 28 U.S.C. § 1291. See Cotton v. Heyman, 63 F.3d 1115, 1117-19 (D.C.Cir.1995). Because the temporal scope of a statute is a question of law, our review is de novo. Trout v. Sec'y of Navy, 317 F.3d 286, 289 (D.C.Cir.2003).\n\nII.\nAt least four events must occur before the government is liable for attorneys' fees under 5 U.S.C. § 552(a)(4)(E)(ii)(II): (1) the plaintiff files a FOIA request with the agency; (2) the agency fails to disclose requested records; (3) the plaintiff sues; and (4) the agency voluntarily or unilaterally changes its position. In this case, as in Summers, all four events took place before the 2007 Act became law. But unlike in Summers, where the parties settled in 2005, the parties here did not settle their litigation until after the change in the law. Judicial Watch argues that the Summers court, by expressly holding that the 2007 Act cannot be applied to cases settled before its effective date, 569 F.3d at 503-04, implicitly held that it can be applied to any case settled after that date.\nThe matter is not so simple. Summers held that the 2007 Act may not be given retroactive effect, but it did not address the question presented here: whether the Act applies when the agency *750 unilaterally disclosed the requested records before the statute's enactment but the parties' formal settlement came afterwards. We conclude that application of the 2007 Act to these facts would have impermissible retroactive effects.\nA statute has retroactive effects if it \"attaches new legal consequences to events completed before its enactment.\" Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Applying the 2007 Act to this case would attach a new legal consequence (liability for attorneys' fees) to an event completed before its enactment (the Bureau's disclosure in September 2007). Judicial Watch implicitly concedes as much when it argues that it became eligible for an award of attorneys' fees under the new law when the Bureau disclosed the requested records. See Appellee's Br. at 18 (\"It was only after Judicial Watch filed the Complaint that BLM released the responsive documents.... [T]his constitutes a voluntary change in position by BLM.... Judicial Watch ... is, therefore, eligible for an award of attorneys' fees.\"). That assertion undermines Judicial Watch's argument that application of the 2007 Act would not be retroactive because the litigation continued until after the Act became law. The disclosure was last in the chain of events relevant to Judicial Watch's eligibility for attorneys' fees under the new law, and it took place months before the law's enactment. That the parties subsequently settled is without relevance to the Bureau's possible liability for attorneys' fees. And because the fact of the settlement is irrelevant, the timing of the settlement has no bearing upon the question of retroactivity. If the 2007 Act were applied to these facts, it would attach new legal consequences to the Bureau's disclosure of the records. Because the disclosure came before the 2007 Act took effect, application of the new law here would be retroactive.\nApplication of the new statute to this case raises the same retroactivity concerns identified in Summers. Because Congress did not make the statute retroactive, see Summers, 569 F.3d at 504, it is of no help to Judicial Watch.\n\nIII.\nThe decision of the district court is reversed and the award of attorneys' fees vacated.\nSo ordered.\n", "ocr": false, "opinion_id": 150085 } ]

[ "476 F. App'x 694" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.ca11.uscourts.gov/unpub/ops/201111397.pdf", "author_id": null, "opinion_text": " [DO NOT PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________ FILED\n U.S. COURT OF APPEALS\n No. 11-11397 ELEVENTH CIRCUIT\n Non-Argument Calendar JANUARY 4, 2012\n ________________________ JOHN LEY\n CLERK\n D.C. Docket No. 1:09-cr-20077-JLK-1\n\n\n\nUNITED STATES OF AMERICA,\n\nlllllllllllllllllllllllllllllllllllllll lPlaintiff - Appellee,\n\n versus\n\nRAMON SANTOS,\n\nllllllllllllllllllllllllllllllllllllllll Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (January 4, 2012)\n\nBefore TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.\n\nPER CURIAM:\n\n Ramon Santos was found guilty by a jury for conspiring to commit health\n\fcare fraud, in violation of 18 U.S.C. § 1349; committing health care fraud, in\n\nviolation of 18 U.S.C. § 1347; and obstructing justice, in violation of 18 U.S.C. §\n\n1503. He was sentenced to 108 months’ imprisonment. Santos appeals his\n\nsentence and argues that it is substantively unreasonable because the district court\n\n(1) erroneously concluded that the sentence disparity between Santos and his co-\n\ndefendants was already taken into account by the sentencing guidelines, and (2)\n\nfailed to take into consideration his post-sentencing rehabilitation. After review,\n\nwe affirm.\n\n I.\n\n Santos was charged, along with three co-conspirators, with conspiracy to\n\ncommit health care fraud and health care fraud. Santos was also charged with\n\nobstruction of justice. Santos’s co-conspirators each pleaded guilty and received\n\nsentences ranging from 38 (after a reduction for substantial assistance) to 100\n\nmonths’ imprisonment. Only Santos proceeded to trial, where he was convicted.\n\n Before sentencing, a probation officer prepared Santos’s presentence\n\ninvestigation report (PSI) and assigned Santos a guideline range of 108 to 135\n\nmonths’ imprisonment. At the sentencing hearing, Santos requested a downward\n\nvariance from the guideline range, citing the need to avoid sentencing disparities\n\namong the co-conspirators. He argued that it was inconsistent with 18 U.S.C. §\n\n 2\n\f3553(a)1 for him to receive a sentence greater than those of his co-conspirators\n\nsimply because he went to trial. The district court adopted the PSI’s guideline\n\nrange and denied Santos’s request for a downward variance, stating:\n\n I do not believe that it is of any, except casual interest, relevance, as to\n what some other judge on this court thinks . . . was fair and reasonable\n for someone that was also involved in this massive fraud . . . . The\n sentencing guidelines commission takes into account all of those [§\n 3553(a)] factors on a nationwide basis and they have concluded that it\n is a reasonable guideline range of 108 to 135 months.\n\nThe district court imposed a 108-month sentence, stating that the other § 3553(a)\n\nfactors “overwhelmingly sustain the guideline range; that is, the need to reflect the\n\nseriousness of this offense.”\n\n Santos appealed, arguing that the district court failed to allow him to\n\nallocute and failed to consider the disparity between his sentence and those of his\n\nco-conspirators. In that appeal, we held that the district court erred in failing to\n\nallow Santos to allocute, and we remanded the case for re-sentencing but declined\n\n\n\n\n 1\n Section 3553(a) requires the district court to consider at sentencing: (1) the nature and\ncircumstances of the offense and the history and characteristics of the defendant; (2) the need to\nreflect the seriousness of the offense, to promote respect for the law, and to provide just\npunishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the\nneed to provide the defendant with educational or vocational training or medical care; (6) the\nkinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent policy\nstatements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;\nand (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).\n\n 3\n\fto decide the reasonableness of Santos’s sentence at that time.2\n\n At his re-sentencing hearing, Santos stated during his allocution that he had\n\nlearned during his incarceration how to understand, acknowledge, and feel\n\nremorse for mistakes. He also stated that his religion helped him to forgive and\n\n“get rid of hate.” Santos argued that his statement evidenced post-sentencing\n\nrehabilitation that warranted a downward variance from the original sentence. The\n\ndistrict court declined to issue a variance, stating, “I have not heard anything here\n\nthat changes anything about the seriousness of this crime that he committed and\n\nhis responsibility for it.” When Santos renewed his disparity argument, the court\n\nadhered to its analysis from the original sentencing hearing. The court again\n\nsentenced Santos to 108 months’ imprisonment.\n\n II.\n\n We review the reasonableness of a sentence under a deferential abuse-of-\n\ndiscretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A district\n\ncourt abuses its discretion when it (1) fails to afford consideration to relevant\n\nfactors that were due significant weight, (2) gives significant weight to an\n\nimproper or irrelevant factor, or (3) commits a clear error of judgment in\n\nconsidering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th\n\n\n 2\n United States v. Santos, 397 F. App’x 583 (11th Cir. 2010).\n\n 4\n\fCir. 2010) (en banc). The party challenging a sentence bears the burden of\n\nestablishing that the sentence was unreasonable based on the record and the\n\n§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).\n\n III.\n\n We conclude that the district court’s sentence was not unreasonable. The\n\ndistrict court expressly considered and weighed the § 3553(a) factors and\n\ndetermined that the seriousness of the offense warranted the sentence imposed.\n\nSantos contends that the district court erred in concluding that the guidelines took\n\ninto account concerns about sentencing disparities and argues that he should have\n\nreceived a sentence closer to that of his co-conspirators. “As with the seriousness\n\nof the offense conduct, avoidance of unwarranted disparities was clearly\n\nconsidered by the Sentencing Commission when setting the Guidelines ranges.”\n\nGall, 552 U.S. at 54. Just as the district court did in Gall, the district court here\n\n“carefully calculated and reviewed the Guidelines range.” Id. Thus, it\n\n“necessarily gave significant weight and consideration to the need to avoid\n\nunwarranted disparities.” Id. Accordingly, the district court did not abuse its\n\ndiscretion in relying on the guidelines ranges to account for disparities in\n\nsentencing.\n\n The district court also did not abuse its discretion in declining to grant\n\n 5\n\fSantos a downward variance based on his post-sentence rehabilitation. The\n\nSupreme Court recently held that “when a defendant’s sentence has been set aside\n\non appeal, a district court at re-sentencing may consider evidence of the\n\ndefendant’s postsentencing rehabilitation and that such evidence may, in\n\nappropriate cases, support a downward variance from the now-advisory Federal\n\nSentencing Guidelines range.” Pepper v. United States, 131 S. Ct. 1229, 1236\n\n(2011). But Pepper merely permits, and does not require, the district court to\n\ngrant a downward variance if a defendant provides evidence of rehabilitation.\n\nThus, the district court did not abuse its discretion in finding that any\n\nrehabilitation Santos experienced before his re-sentencing did not affect the\n\ncourt’s calculation of an appropriate sentence.\n\n III.\n\n Because we conclude that the district court did not abuse its discretion when\n\nit sentenced Santos to 108 months’ imprisonment, the sentence is\n\nAFFIRMED.\n\n\n\n\n 6\n\f", "ocr": false, "opinion_id": 620186 } ]

[ "136 L. Ed. 2d 656", "117 S. Ct. 666", "519 U.S. 213", "1997 U.S. LEXIS 461" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 384, "opinion_text": "\n519 U.S. 213 (1997)\nATHERTON\nv.\nFEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for CITY SAVINGS, F. S. B.\nNo. 95-928.\nUnited States Supreme Court.\nArgued November 4, 1996.\nDecided January 14, 1997.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT\n*215 *215 Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined, and in which O'Connor, Scalia, and Thomas, JJ., joined, except to the extent the opinion relies on legislative history. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia and Thomas, JJ., joined, post, p. 231.\nRonald W. Stevens argued the cause for petitioner. With him on the briefs were Gilbert C. Miller and Bruce H. Nielson. \nRichard P. Bress argued the cause for respondent. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Bender, Jack D. Smith, Ann S. DuRoss, and Jerome A. Madden.[*]\nJustice Breyer, delivered the opinion of the Court.\nThe Resolution Trust Corporation (RTC) sued several officers and directors of City Federal Savings Bank, claiming that they had violated the legal standard of care they owed that federally chartered, federally insured institution. The case here focuses upon the legal standard for determining whether or not their behavior was improper. It asks where courts should look to find the standard of care to measure the legal propriety of the defendants' conduct—to state law, *216 to federal common law, or to a special federal statute (103 Stat. 243, 12 U. S. C. § 1821(k)) that speaks of \"gross negligence\"?\nWe conclude that state law sets the standard of conduct as long as the state standard (such as simple negligence) is stricter than that of the federal statute. The federal statute nonetheless sets a \"gross negligence\" floor, which applies as a substitute for state standards that are more relaxed.\n\nI\nIn 1989, City Federal Savings Bank (City Federal), a federal savings association, went into receivership. The RTC, as receiver, brought this action in the bank's name against officers and directors. (Throughout this opinion, we use the more colloquial term \"bank\" to refer to a variety of institutions such as \"federal savings associations.\") The complaint said that the defendants had acted (or failed to act) in ways that led City Federal to make various bad development, construction, and business acquisition loans. It claimed that these actions (or omissions) were unlawful because they amounted to gross negligence, simple negligence, and breaches of fiduciary duty.\nThe defendants moved to dismiss. They pointed to a federal statute, 12 U. S. C. § 1821(k), that says in part that a \"director or officer\" of a federally insured bank \"may be held personally liable for monetary damages\" in an RTC-initiated \"civil action . . . for gross negligence \" or \"similar conduct . . . that demonstrates a greater disregard of a duty of care (than gross negligence) .. . .\" (Emphasis added.) They argued that, by authorizing actions for gross negligence or more seriously culpable conduct, the statute intended to forbid actions based upon less seriously culpable conduct, such as conduct that rose only to the level of simple negligence. The District Court agreed and dismissed all but the gross negligence claims.\n*217 The Third Circuit, providing an interlocutory appeal, 28 U. S. C. § 1292(b), reversed. It interpreted the federal statute as simply offering a safeguard against state legislation that had watered down applicable state standards of care— below a gross negligence benchmark. As so interpreted, the statute did not prohibit actions resting upon stricter standard of care rules—whether those stricter standard of care rules originated in state law (which the Circuit found applicable in the case of state-chartered banks) or in federal common law (which the Circuit found applicable in the case of federally chartered banks). Resolution Trust Corp. v. Cityfed Financial Corp., 57 F. 3d 1231, 1243-1244, 1245-1249 (1995). Noting that City Federal is a federally chartered savings institution, the Circuit concluded that the RTC was free \"to pursue any claims for negligence or breach of fiduciary duty available as a matter of federal common law.\" Id., at 1249.\nThe defendants, pointing to variations in the Circuits' interpretations of the \"gross negligence\" statute, sought certiorari. Compare Resolution Trust Corp. v. Frates, 52 F. 3d 295 (CA10 1995) (§ 1821(k) prohibits federal common-law actions for simple negligence), with Cityfed, supra, at 1246— 1249 (§ 1821(k) does not prohibit federal common-law actions for simple negligence). And we granted review.\n\nII\nWe begin by temporarily setting the federal \"gross negligence\" statute to the side, and by asking whether, were there no such statute, federal common law would provide the applicable legal standard. We recognize, as did the Third Circuit, that this Court did once articulate federal commonlaw corporate governance standards, applicable to federally chartered banks. Briggs v. Spaulding, 141 U. S. 132 (1891). See also Martin v. Webb, 110 U. S. 7, 15 (1884) (directors must \"use ordinary diligence . . . and . . . exercise reasonable *218 control\"); Bowerman v. Hamner, 250 U. S. 504 (1919). But the Court found its rules of decision in federal common law long before it held, in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that \"[t]here is no federal general common law.\" Id., at 78. The Third Circuit, while considering itself bound by Briggs, asked whether relevant federal common-law standards could have survived Erie. We conclude that they did not and that (except as modified in Part III, infra ) state law, not federal common law, provides the applicable rules for decision.\nThis Court has recently discussed what one might call \"federal common law\" in the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute or a properly promulgated administrative rule, but, rather, to the judicial \"creation\" of a special federal rule of decision. See Texas Industries, Inc. v. Radcliff Materials, Inc. , 451 U. S. 630, 640-643 (1981). The Court has said that \"cases in which judicial creation of a special federal rule would be justified . . . are . . . `few and restricted.' \" O'Melveny & Myers v. FDIC, 512 U. S. 79, 87 (1994) (quoting Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963)). \"Whether latent federal power should be exercised to displace state law is primarily a decision for Congress,\" not the federal courts. Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966). Nor does the existence of related federal statutes automatically show that Congress intended courts to create federal common-law rules, for \"`Congress acts . . . against the background of the total corpus juris of the states. . . .' \" Id., at 68 (quoting H. Hart & H. Wechsler, The Federal Courts and the Federal System 435 (1953)). Thus, normally, when courts decide to fashion rules of federal common law, \"the guiding principle is that a significant conflict between some federal policy or interest and the use of state law . . . must first be specifically shown.\" 384 U. S., at 68. Indeed, such a \"conflict\" is normally a \"precondition.\" O'Melveny, supra, at 87. See also United States v. Kimbell *219 Foods, Inc., 440 U. S. 715, 728 (1979); Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 98 (1991).\nNo one doubts the power of Congress to legislate rules for deciding cases like the one before us. Indeed, Congress has enacted related legislation. Certain federal statutes specify, for example, how to form \"national banks\" (i. e., a federally chartered bank), how to amend the articles of association, how shareholders are to vote, directors' qualifications, the form of a bank's \"organization certificate,\" minimum capital requirements, and a list of corporate powers. See 12 U. S. C. § 21 et seq. Other federal statutes regulate the activities of federally chartered savings associations in various ways. E. g., 12 U. S. C. § 1464(b) (various regulations on savings associations, such as interest rate on loans). No one argues, however, that either these statutes, or federal regulations validly promulgated pursuant to statute, set forth general corporate governance standards of the sort at issue applicable to a federally chartered savings association such as City Federal. Cf. 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (discussed infra, at 224) (describing governance procedures applicable to federally chartered national banks, but not federal savings associations). Consequently, we must decide whether the application of state-law standards of care to such banks would conflict with, and thereby significantly threaten, a federal policy or interest.\nWe have examined each of the basic arguments that the respondent implicitly or explicitly raises. In our view, they do not point to a conflict or threat that is significant, and we shall explain why. (The respondent, by the way, is now the Federal Deposit Insurance Corporation—the FDIC—which has replaced the RTC pursuant to a new federal statute. 12 U. S. C. § 1441a(b)(4)(A).)\nFirst, the FDIC invokes the need for \"uniformity.\" Federal common law, it says, will provide uniformity, but \"[s]uperimposing state standards of fiduciary responsibility over standards developed by a federal chartering authority would *220. . . `upset the balance' that the federal chartering authority `may strike . . . .' \" Brief for Respondent 23 (quoting Kamen, supra, at 103). To invoke the concept of \"uniformity,\" however, is not to prove its need. Cf. Kimbell Foods, supra, at 730 (rejecting \"generalized pleas for uniformity\"); O'Melveny, supra, at 88 (same).\nFor one thing, the number of federally insured banks is about equally divided between federally chartered and state-chartered banks, Federal Deposit Insurance Corporation, 1 Statistics on Banking: A Statistical History of the United States Banking Industry, p. B-9 (Aug. 1995) (Table SI-9) (showing that, in 1989, there were 1,595 federally chartered institutions and 1,492 state-chartered ones); and a federal standard that increases uniformity among the former would increase disparity with the latter.\nFor another, our Nation's banking system has thrived despite disparities in matters of corporate governance. Consider, for example, the divergent state-law governance standards applicable to banks chartered in different States, e. g., Ind. Code § 23-1—35-1(e)(2) (1994) (directors not liable unless conduct constitutes at least \"willful misconduct or recklessness\"); Iowa Code § 524.605 (1995) (providing ordinary negligence standard), as well as the different ways in which lower courts since 1891 have interpreted Briggs ` \"federal common law\" standard. Compare Federal Deposit Insurance Corporation v. Mason, 115 F. 2d 548, 551-552 (CA3 1940) (applying standard similar to simple negligence), with Washington Bancorporation v. Said, 812 F. Supp. 1256, 1266 (DC 1993) (Briggs did not apply \"simple negligence\" standard of care). See R. Stevens & B. Nielson, The Standard of Care for Directors and Officers of Federally Chartered Depository Institutions: It's Gross Negligence Regardless of Whether Section 1821(k) Preempts Federal Common Law, 13 Ann. Review Banking L. 169, 172 (1994) (in part because of \"widely varying results, the federal common law standard of care is neither fully developed, nor well settled\"). See *221 also infra, at 223 (citing cases in which state governance law has been applied to national banks). Indeed, the Comptroller of the Currency, acting through regulation, permits considerable disparity in the standard of care applicable to federally chartered banks other than savings banks (which are under the jurisdiction of the Office of Thrift Supervision (OTS), 12 U. S. C. §§ 1462a, 1463(a)). See 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (permitting banks, within broad limits, \"to follow the corporate governance procedures of the law of the state in which the main office of the bank is located . . . [or] the Delaware General Corporation Law . . . or the [Model Business Corporation Act]\").\nSecond, the FDIC at times suggests that courts must apply a federal common-law standard of care simply because the banks in question are federally chartered. This argument, with little more, might have seemed a strong one during most of the first century of our Nation's history, for then state-chartered banks were the norm and federally chartered banks an exception—and federal banks often encountered hostility and deleterious state laws. See B. Klebaner, American Commercial Banking: A History 4-11 (1990) (tracing the origin of the dual banking system to the 1780 Philadelphia Bank and discussing proposals of a then-young Alexander Hamilton); B. Hammond, Banks and Politics in America: From the Revolution to the Civil War 41-66 (1957) (describing the controversial, but successful, Federalist proposals for the first and second federally chartered Bank of the United States).\nAfter President Madison helped to create the second Bank of the United States, for example, many States enacted laws that taxed the federal bank in an effort to weaken it. This Court held those taxes unconstitutional. McCulloch v. Maryland, 4 Wheat. 316, 431 (1819) (\"[T]he power to tax involves the power to destroy\"). See also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (federal marshals acted lawfully in seizing funds from a state tax collector who had *222 hurdled the counter at the Chilicothe Branch of the Bank of the United States and taken $100,000 from the vault). Still, 10 years later President Andrew Jackson effectively killed the bank. His Secretary of the Treasury Roger Taney (later Chief Justice), believing state banks fully able to serve the Nation, took steps to \"ushe[r] in the era of expansive state banking.\" A. Pollard, J. Passaic, K. Ellis, & J. Daly, Banking Law in the United States 16 (1988). See also Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837) (permitting state banks to issue paper money in certain circumstances).\nDuring and after the Civil War a federal banking system reemerged. Moved in part by war-related financing needs, Treasury Secretary (later Chief Justice) Salmon P. Chase proposed, and Congress enacted, laws providing for federally chartered banks, Act of Feb. 20, 1863, ch. 43, 12 Stat. 655, and encouraging state banks to obtain federal charters. Act of June 3, 1864, ch. 106, 13 Stat. 99 (only federally chartered banks can issue national currency). See also Veazie v. Fenno, 8 Wall. 533 (1869) (opinion of Chase, C. J.) (upholding constitutionality of federal taxation of state banks). Just before World War I, Congress created the federal reserve system. Act of Dec. 23, 1913, ch. 6, 38 Stat. 251. After that war, it created several federal banking agencies with regulatory authority over both federal and state banks. Act of June 16, 1933, ch. 89, 48 Stat. 162. And in 1933, it provided for the federal chartering of savings banks. Act of June 13, 1933, ch. 62, 48 Stat. 128.\nThis latter history is relevant because in 1870 and thereafter this Court held that federally chartered banks are subject to state law. See National Bank v. Commonwealth, 9 Wall. 353, 361 (1870). In National Bank the Court distinguished McCulloch by recalling that Maryland's taxes were \"used . . . to destroy,\" and it added that federal banks\n\"are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation. All their contracts are *223 governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional.\" 9 Wall., at 362. The Court subsequently found numerous state laws applicable to federally chartered banks. See, e. g., Davis v. Elmira Savings Bank, 161 U. S. 275, 290 (1896) (\"Nothing, of course, in this opinion is intended to deny the operation of general and undiscriminating state laws on the contracts of national banks, so long as such laws do not conflict with the letter or the general objects and purposes of Congressional legislation\"); First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 656 (1924) (national banks \"are subject to the laws of a State in respect of their affairs unless such laws interfere with the purposes of their creation, tend to impair or destroy their efficiency as federal agencies or conflict with the paramount law of the United States\"); Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U. S. 103 (1939) (applying state law to tort claim by depositor against directors of a national bank); Anderson Nat. Bank v. Luckett, 321 U. S. 233, 248 (1944) (\"[N]ational banks are subject to state laws, unless those laws infringe the national banking laws or impose an undue burden on the performance of the banks' functions\"); California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 (1987) (applying state employment discrimination law to federally chartered savings and loan association).\nFor present purposes, the consequence is the following: To point to a federal charter by itself shows no conflict, threat, or need for \"federal common law.\" It does not answer the critical question.\nThird, the FDIC refers to a conflict of laws principle called the \"internal affairs doctrine\"—a doctrine that this Court has described as\n\n*224 \"a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders—because otherwise a corporation could be faced with conflicting demands.\" Edgar v. MITE Corp., 457 U. S. 624, 645 (1982). States normally look to the State of a business' incorporation for the law that provides the relevant corporate governance general standard of care. Restatement (Second) Conflict of Laws § 309 (1971). And by analogy, it has been argued, courts should look to federal law to find the standard of care governing officers and directors of federally chartered banks. See Resolution Trust Corporation v. Chapman, 29 F. 3d 1120, 1123-1124 (CA7 1994).\nTo find a justification for federal common law in this argument, however, is to substitute analogy or formal symmetry for the controlling legal requirement, namely, the existence of a need to create federal common law arising out of a significant conflict or threat to a federal interest. O'Melveny, 512 U. S., at 85, 87. The internal affairs doctrine shows no such need, for it seeks only to avoid conflict by requiring that there be a single point of legal reference. Nothing in that doctrine suggests that the single source of law must be federal. See Chapman, supra, at 1126-1127 (Posner, C. J., dissenting). In the absence of a governing federal common law, courts applying the internal affairs doctrine could find (we do not say that they will find) that the State closest analogically to the State of incorporation of an ordinary business is the State in which the federally chartered bank has its main office or maintains its principal place of business. Cf. 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (federally chartered commercial banks may \"follow the corporate governance procedures of the law of the state in which the main office of the bank is located\"). So to apply state law, *225 as we have said, would tend to avoid disparity between federally chartered and state-chartered banks (that might be next door to each other). And, of course, if this approach proved problematic, Congress and federal agencies acting pursuant to congressionally delegated authority remain free to provide to the contrary.\nFourth, the FDIC points to statutes that provide the OTS, a federal regulatory agency, with authority to fine, or to remove from office, savings bank officers and directors for certain breaches of fiduciary duty. The FDIC adds that in \"the course of such proceedings, the OTS, applying the ordinarycare standard [of Briggs, ] . . . has spoken authoritatively respecting the duty of care owed by directors and officers to federal savings associations.\" Brief for Respondent 23-25 (citations omitted). The FDIC does not claim, however, that these OTS statements, interpreting a pre-existing judgemade federal common-law standard (i. e., that of Briggs ) themselves amounted to an agency effort to promulgate a binding regulation pursuant to delegated congressional authority. Nor have we found, in our examination of the relevant OTS opinions, any convincing evidence of a relevant, significant conflict or threat to a federal interest.\nFinally, we note that here, as in O'Melveny, the FDIC is acting only as a receiver of a failed institution; it is not pursuing the interest of the Federal Government as a bank insurer—an interest likely present whether the insured institution is state, or federally, chartered.\nIn sum, we can find no significant conflict with, or threat to, a federal interest. The federal need is far weaker than was present in what the Court has called the \"`few and restricted' instances,\" Milwaukee v. Illinois, 451 U. S. 304, 313 (1981), in which this Court has created a federal common law. Consider, for example, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92 (1938) (controversy between two States regarding apportionment of streamwater); Boyle v. United Technologies Corp., 487 U. S. 500 (1988) *226 (Federal Government contractors and civil liability of federal officials); United States v. Standard Oil Co. of Cal., 332 U. S. 301, 305 (1947) (relationship between Federal Government and members of its Armed Forces); Howard v. Lyons, 360 U. S. 593, 597 (1959) ( liability of federal officers in the course of official duty); Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 425 (1964) (relationships with other countries). See also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981) (\"[A]bsent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases\"). Indeed, the interests in many of the cases where this Court has declined to recognize federal common law appear at least as strong as, if not stronger than, those present here. E. g., Wallis v. Pan American Petroleum Corp., 384 U. S. 63 (1966) (applying state law to claims for land owned and leased by the Federal Government); Kimbell Foods, 440 U. S., at 726, 732-738 (applying state law to priority of liens under federal lending programs).\nWe conclude that the federal common-law standards enunciated in cases such as Briggs did not survive this Court's later decision in Erie v. Tompkins. There is no federal common law that would create a general standard of care applicable to this case.\n\nIII\nWe now turn to a further question: Does federal statutory law (namely, the federal \"gross negligence\" statute) supplant any state-law standard of care? The relevant parts of that statute read as follows:\n\"A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request or *227 direction of the Corporation . . . acting as conservator or receiver . . . for gross negligence, including any similar conduct or conduct that demonstrates a greater disre- gard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable State law. Nothing in this paragraph shall impair or affect any right of the Corporation under other applicable law. \" 12 U. S. C. § 1821(k) (emphasis added).\nLower courts have taken different positions about whether this statute, in stating that directors and officers \"may be held personally liable\" for conduct that amounts to \"gross negligence\" or worse, immunizes them from liability for conduct that is less culpable than gross negligence such as simple negligence. Federal Deposit Insurance Corporation v. McSweeney, 976 F. 2d 532, 537, n. 5 (CA9 1992), cert. denied, 508 U. S. 950 (1993); Federal Deposit Insurance Corporation v. Canfield, 967 F. 2d 443, 446, n. 3 (CA10) (en banc), cert. dism'd, 506 U. S. 993 (1992); Federal Deposit Insurance Corporation v. Swager, 773 F. Supp. 1244 (Minn. 1991). See also Pet. for Cert. i (\"The questions presented for review are: 1. Whether Section 1821(k) supplants `federal common law' and constitutes the exclusive standard of liability in a civil damage action brought by the Resolution Trust Corporation. . .\"); Brief for American Bankers Association et al. as Amici Curiae 7-8.\nIn our view, the statute's \"gross negligence\" standard provides only a floor—a guarantee that officers and directors must meet at least a gross negligence standard. It does not stand in the way of a stricter standard that the laws of some States provide.\nFor one thing, the language of the statute contains a saving clause that, read literally, preserves the applicability of stricter state standards. It says \"[n]othing in this paragraph shall impair or affect any right of the Corporation under other applicable law.\" 12 U. S. C. § 1821(k) (emphasis *228 added). The petitioner, in contending that the statute displaces federal common law, says that \"any right\" means only a right created elsewhere in the same Act of Congress, for example, by various regulatory enforcement provisions. E. g., § 1818(b) (cease-and-desist provision). But that is not what the Act says nor does its language compel so restrictive a reading. That language, read naturally, suggests an interpretation broad enough to save rights provided by other state, or federal, law.\nFor another thing, Congress enacted the statute against a background of failing savings associations, see 135 Cong. Rec. 121 (1989) (statement of Rep. Roth); 135 Cong. Rec. 1760 (1989) (statement of Sen. Graham), large federal payments to insured bank depositors, and recent changes in state law designed to limit pre-existing officer and director negligence liability. See, e. g., Fla. Stat. § 607.0831 (1993) (\"recklessness or an act or omission . . . committed in bad faith or with malicious purpose\"); Ohio Rev. Code Ann. § 1701.59(D) (1994) (\"deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation\"). The state-law changes would have made it more difficult for the Federal Government to recover, from negligent officers and directors, federal funds spent to rescue failing savings banks and their depositors. And the background as a whole supports a reading of the statute as an effort to preserve the Federal Government's ability to recover funds by creating a standard of care floor.\nThe legislative history, insofar as it is relevant, supports this conclusion. Members of Congress repeatedly referred to the harm that liability-relaxing changes in state law had caused the Federal Government, hence the taxpayer, as federal banking agencies tried to recover, from negligent officers and directors, some of the money that federal insurers had to pay to depositors in their failed banks. E. g., 135 Cong. Rec. 7150-7151 (1989) (statement of Sen. Riegle) (\"[T]he establishment of a Federal standard of care is based *229 on the overriding Federal interest in protecting the soundness of the Federal Deposit Insurance Corporation fund and is very limited in scope. It is not a wholesale preemption of longstanding principles of corporate governance . . .\"). To have pre-empted state law with a uniform federal \"gross negligence\" standard would have cured the problem in some instances (where state law was weaker) but would have aggravated it in others (where state law was stronger).\nIn fact, the legislative history says more. The relevant Senate Report addresses the point specifically. It says:\n\"This subsection does not prevent the FDIC from pursuing claims under State law or under other applicable Federal law, if such law permits the officers or directors of a financial institution to be sued (1) for violating a lower standard of care, such as simple negligence.\" S. Rep. No. 101-19, p. 318 (1989).\nThis Report was not published until two weeks after Congress enacted the law. But, as petitioner elsewhere concedes, the Report was circulated within Congress several weeks before Congress voted. In fact Senator Riegle, the Banking Committee Chairman, read the statement, on his own behalf and that of Senator Garn, six weeks before Congress voted on the law. 135 Cong. Rec. 12374 (1989). Contrast Clarke v. Securities Industry Assn., 479 U. S. 388, 407 (1987) (refusing to \"attach substantial weight\" to a Representative's statement made 10 days after the enactment of the law).\nThe history is not all on one side. The Congressional Record contains one statement that suggests a competing congressional purpose, namely, to protect bank officers and directors from too strict a liability standard. 135 Cong. Rec. 7150 (1989) (statement of Sen. Sanford) (supporting \"provisions relating to State laws affecting the liability of officers and directors of financial institutions\" because \"these changes are essential if we are to attract qualified officers *230 and directors to serve in our financial institutions\"). But we have not found other such statements. And that statement is inconsistent with the language of the Senate Report. It suggests an interpretation of the statute largely rejected in the lower courts, namely, that it pre-empts stricter state law as applied to state-chartered, as well as to federally chartered, institutions. See, e. g., McSweeney, 976 F. 2d, at 540— 541 (rejecting the interpretation as applied to statechartered banks); Canfield, 967 F. 2d, at 448-449 (same).\nThe petitioner, in the courts below and as an alternative ground in this Court, made a final complicated argument to explain why 12 U. S. C. § 1821(k) displaces federal common law. He points to the universally conceded fact that the \"gross negligence\" statute applies to federal, as well as to state, banks. He then assumes, for sake of the argument, that in the absence of the statute, federal common law would determine liability for federal banks. He then asks why Congress would have applied the \"gross negligence\" statute to federal banks unless it wanted that statute to set an absolute standard, not a floor. After all, on the assumption that, without the statute, federal common law would hold federal directors and officers to a standard as strict, or stricter, there would have been no need for the statute unless (as applied to federal banks) it intended to set a universal standard, freeing officers and directors from the potentially less strict standard of the common law, and not what, given the assumptions, would be a totally unnecessary floor. This argument, taken to its logical conclusion, would also suggest that state standards of simple negligence would be displaced by the federal gross negligence statute.\nOne obvious short answer to this ingenious argument lies in the fact that our conclusion in Part II runs contrary to the argument's critical assumption, namely, that federal common law sets the standard of liability applicable to federal banks. State law applies. Without that assumption, the need for a \"gross negligence\" floor in the case of federally chartered banks is identical to the need in the case of state-chartered *231 banks. In both instances, the floor is needed to limit state efforts to weaken liability standards; in both instances a floor serves that purpose; and the reasons for believing the statute only sets such a floor are equally strong.\nA more thorough answer lies in the fact that Congress nowhere separated its consideration of federally chartered, from that of state-chartered, banks. Congress did not ask whether one looked to federal common law or to state law to find the liability standard applicable to federally chartered banks. Nor did it try to determine the content of federal common law. One can reconcile congressional silence on the matter with a \"gross negligence\" statute, the language of which brings all banks (federal- and state-chartered) within its scope, simply by assuming that Congress, when enacting the statute, wanted to leave other law, including the law applicable to federally chartered banks, exactly where Congress found it. That, after all, is what the statute says. And the saving clause language taken at face value permits Congress to achieve its basic objective (providing a \"gross negligence\" floor) without having to unravel the arcane intricacies of federal common law. In our view, this understanding of congressional intent better explains the statute's language and history than the petitioner's interpretation, imputing to Congress an intent to apply a uniform \"gross negligence\" standard to federally chartered, but not state chartered, institutions.\nFor these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.\n\nIt is so ordered. Justice O'Connor, with whom Justice Scalia and Justice Thomas join, concurring in part and concurring in the judgment.\nI join all of the Court's opinion, except to the extent that it relies on the notably unhelpful legislative history to 12 U. S. C. § 1821(k). Ante, at 228-230. As the Court correctly *232 points out, the most natural reading of the saving clause in § 1821(k) covers both state and federal rights. Ante, at 228. With such plain statutory language in hand, there is no reason to rely on legislative history that is, as the majority recognizes, \"not all on one side.\" Ante, at 229.\n", "ocr": false, "opinion_id": 118076 }, { "author_str": "Breyer", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJustice Breyer\ndelivered the opinion of the Court.\nThe Resolution Trust Corporation (RTC) sued several officers and directors of City Federal Savings Bank, claiming that they had violated the legal standard of care they owed that federally chartered, federally insured institution. The case here focuses upon the legal standard for determining whether or not their behavior was improper. It asks where courts should look to find the standard of care to measure the legal propriety of the defendants’ conduct — to state law, *216to federal common law, or to a special federal (103 Stat. 243, 12 U. S. C. § 1821(k)) that speaks of “gross negligence”? of conduct as\nWe conclude that long as the state standard (such as simple negligence) is stricter than that of the federal statute. The federal statute nonetheless sets a “gross negligence” floor, which applies as a substitute for state standards that are more relaxed.\nH-1\nIn 1989, City Federal Savings Bank (City Federal), a federal savings association, went into receivership. The RTC, as receiver, brought this action in the bank’s narrie against officers and directors. (Throughout this opinion, we use the more colloquial term “bank” to refer to a variety of institutions such as “federal savings associations.”) The complaint said that the defendants had acted (or failed to act) in ways that led City Federal to make various bad development, construction, and business acquisition loans. It claimed that these actions (or omissions) were unlawful because they amounted to gross negligence, simple negligence, and breaches of fiduciary duty. to a fed-\nThe defendants eral statute, 12 U. S. C. § 1821 (k), that says in part that a “director or officer” of a federally insured bank “may be held personally liable for monetary damages” in an RTC-initiated “civil action ... for gross negligence” or “similar conduct... that demonstrates a greater disregard of a duty of care (than gross negligence) . . . .” (Emphasis added.) They argued that, by authorizing actions for gross negligence or more seriously culpable conduct, the statute intended to forbid actions based upon less seriously culpable conduct, such as conduct that rose only to the level of simple negligence. The District Court agreed and dismissed all but the gross negligence claims.\n*217The Third Circuit, providing an interlocutory appeal, 28 U. S. C. § 1292(b), reversed. It interpreted the federal statute as simply offering a safeguard against state legislation that had watered down applicable state standards of care— below a gross negligence benchmark. As so interpreted, the statute did not prohibit actions resting upon stricter standard of care rules — whether those stricter standard of care rules originated in state law (which the Circuit found applicable in the case of state-chartered banks) or in federal common law (which the Circuit found applicable in the case of federally chartered banks). Resolution Trust Corp. v. Cityfed Financial Corp., 57 F. 3d 1231, 1243-1244, 1245-1249 (1995). Noting that City Federal is a federally chartered savings institution, the Circuit concluded that the RTC was free “to pursue any claims for negligence or breach of fiduciary duty available as a matter of federal common law.” Id., at 1249.\nThe defendants, pointing to variations in the Circuits’ interpretations of the “gross negligence” statute, sought cer-tiorari. Compare Resolution Trust Corp. v. Frates, 52 F. 3d 295 (CA10 1995) (§ 1821(k) prohibits federal common-law actions for simple negligence), with Cityfed, supra, at 1246-1249 (§ 1821(k) does not prohibit federal common-law actions for simple negligence). And we granted review.\nI — I\nWe begin by temporarily setting the federal “gross negligence” statute to the side, and by asking whether, were there no such statute, federal common law would provide the applicable legal standard. We recognize, as did the Third Circuit, that this Court did once articulate federal common-law corporate governance standards, applicable to federally chartered banks. Briggs v. Spaulding, 141 U. S. 132 (1891). See also Martin v. Webb, 110 U. S. 7, 15 (1884) (directors must “use ordinary diligence ... and ... exercise reasonable *218control”); Bowerman v. the Court found its rules of decision in federal common law long before it held, in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that “[tjhere is no federal general common law.” Id., at 78. The Third Circuit, while considering itself bound by Briggs, asked whether relevant federal common-law standards could have survived Erie. We conclude that they did not and that (except as modified in Part III, infra) state law, not federal common law, provides the applicable rules for decision. call\nThis Court has recently “federal common law” in the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute or a properly promulgated administrative rule, but, rather, to the judicial “creation” of a special federal rule of decision. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640-643 (1981). The Court has said that “cases in which judicial creation of a special federal rule would be justified . . . are . . . ‘few and restricted.’” O'Melveny & Myers v. FDIC, 512 U. S. 79, 87 (1994) (quoting Wheeldin v. Wheeler, 373 U. S. 647, 651 (1963)). “Whether latent federal power should be exercised to displace state law is primarily a decision for Congress,” not the federal courts. Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966). Nor does the existence of related federal statutes automatically show that Congress intended courts to create federal common-law rules, for “‘Congress acts . . . against the background of the total corpus juris of the states ....’” Id., at 68 (quoting H. Hart & H. Wechsler, The Federal Courts and the Federal System 435 (1953)). Thus, normally, when courts decide to fashion rules of federal common law, “the guiding principle is that a significant conflict between some federal policy or interest and the use of state law . . . must first be specifically shown.” 384 U. S., at 68. Indeed, such a “conflict” is normally a “precondition.” O’Melveny, supra, at 87. See also United States v. Kimbell *219Foods, Inc., 440 U. S. 715, 728 (1979); Kamen v. Kemper Financial Services, Inc., 500 U. S. 90, 98 (1991).\nNo one doubts the power of Congress to legislate rules for deciding cases like the one before us. Indeed, Congress has enacted related legislation. Certain federal statutes specify, for example, how to form “national banks” (i e., a federally chartered bank), how to amend the articles of association, how shareholders are to vote, directors’ qualifications, the form of a bank’s “organization certificate,” minimum capital requirements, and a list of corporate powers. See 12 U. S. C. § 21 et seq. Other federal statutes regulate the activities of federally chartered savings associations in various ways. E. g., 12 U. S. C. '§ 1464(b) (various regulations on savings associations, such as interest rate on loans). No one argues, however, that either these statutes, or federal regulations validly promulgated pursuant to statute, set forth general corporate governance standards of the sort at issue applicable to a federally chartered savings association such as City Federal. Cf. 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (discussed infra, at 224) (describing governance procedures applicable to federally chartered national banks, but not federal savings associations). Consequently, we must decide whether the application of state-law standards of care to such banks would conflict with, and thereby significantly threaten, a federal policy or interest.\nWe have examined each of the basic arguments that the respondent implicitly or explicitly raises. In our view, they do not point to a conflict or threat that is significant, and we shall explain why. (The respondent, by the way, is now the Federal Deposit Insurance Corporation — the FDIC — which has replaced the RTC pursuant to a new federal statute. 12 U.S. C. § 1441a(b)(4)(A).)\nFirst, the FDIC invokes the need for “uniformity.” Federal common law, it says, will provide uniformity, but “[superimposing state standards of fiduciary responsibility over standards developed by a federal chartering authority would *220. . . 'upset the balance’ that the 'may strike . . . Brief for Respondent 23 (quoting Kamen, supra, at 103). To invoke the concept of “uniformity,” however, is not to prove its need. Cf. Kimbell Foods, supra, at 730 (rejecting “generalized pleas for uniformity”); O’Melveny, supra, at 88 (same). insured banks is\nFor one thing, about equally divided between federally chartered and state-chartered banks, Federal Deposit Insurance Corporation, 1 Statistics on Banking: A Statistical History of the United States Banking Industry, p. B-9 (Aug. 1995) (Table SI-9) (showing that, in 1989, there were 1,595 federally chartered institutions and 1,492 state-chartered ones); and a federal standard that increases uniformity among the former would increase disparity with the latter. has thrived\nFor another, our despite disparities in matters of corporate governance. Consider, for example, the divergent state-law governance standards applicable to banks chartered in different States, e. g., Ind. Code § 23-l-35-l(e)(2) (1994) (directors not liable unless conduct constitutes at least “willful misconduct or recklessness”); Iowa Code §524.605 (1995) (providing ordinary negligence standard), as well as the different ways in which lower courts since 1891 have interpreted Briggs’ “federal common law” standard. Compare Federal Deposit Insurance Corporation v. Mason, 115 F. 2d 548, 551-552 (CA3 1940) (applying standard similar to simple negligence), with Washington Bancorporation v. Said, 812 F. Supp. 1256, 1266 (DC 1993) (Briggs did not apply “simple negligence” standard of care). See R. Stevens & B. Nielson, The Standard of Care for Directors and Officers of Federally Chartered Depository Institutions: It’s Gross Negligence Regardless of Whether Section 1821(k) Preempts Federal Common Law, 13 Ann. Review Banking L. 169, 172 (1994) (in part because of “widely varying results, the federal common law standard of care is neither fully developed, nor well settled”). See *221also infra, at 223 (citing cases in which state governance law has been applied to national banks). Indeed, the Comptroller of the Currency, acting through regulation, permits considerable disparity in the standard of care applicable to federally chartered banks other than savings banks (which are under the jurisdiction of the Office of Thrift Supervision (OTS), 12 U. S. C. §§ 1462a, 1463(a)). See 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (permitting banks, within broad limits, “to follow the corporate governance procedures of the law of the state in which the main office of the bank is located ... [or] the Delaware General Corporation Law ... or the [Model Business Corporation Act]”).\nSecond, the FDIC at times suggests that courts must apply a federal common-law standard of care simply because the banks in question are federally chartered. This argument, with little more, might have seemed a strong one during most of the first century of our Nation’s history, for then state-chartered banks were the norm and federally chartered banks an exception — and federal banks often encountered hostility and deleterious state laws. See B. Klebaner, American Commercial Banking: A History 4-11 (1990) (tracing the origin of the dual banking system to the 1780 Philadelphia Bank and discussing proposals of a then-young Alexander Hamilton); B. Hammond, Banks and Politics in America: From the Revolution to the Civil War 41-66 (1957) (describing the controversial, but successful, Federalist proposals for the first and second federally chartered Bank of the United States).\nAfter President Madison helped to create the second Bank of the United States, for example, many States enacted laws that taxed the federal bank in an effort to weaken it. This Court held those taxes unconstitutional. McCulloch v. Maryland, 4 Wheat. 316, 431 (1819) (“[T]he power to tax involves the power to destroy”). See also Osborn v. Bank of United States, 9 Wheat. 738 (1824) (federal marshals acted lawfully in seizing funds from a state tax collector who had *222hurdled the counter at the Chilicothe Branch of the Bank of the United States and taken $100,000 from the vault). Still, 10 years later President Andrew Jackson effectively killed the bank. His Secretary of the Treasury Roger Taney (later Chief Justice), believing state banks fully able to serve the Nation, took steps to “ushe[r] in the era of expansive state banking.” A. Pollard, J. Passaic, K. Ellis, & J. Daly, Banking Law in the United States 16 (1988). See also Briscoe v. Bank of Kentucky, 11 Pet. 257 (1837) (permitting state banks to issue paper money in certain circumstances).\nDuring and after the reemerged. Moved in part by war-related financing needs, Treasury Secretary (later Chief Justice) Salmon P. Chase proposed, and Congress enacted, laws providing for federally chartered banks, Act of Feb. 20, 1863, ch. 43, 12 Stat. 655, and encouraging state banks to obtain federal charters. Act of June 3, 1864, ch. 106, 13 Stat. 99 (only federally chartered banks can issue national currency). See also Veazie v. Fenno, 8 Wall. 533 (1869) (opinion of Chase, C. J.) (upholding constitutionality of federal taxation of state banks). Just before World War I, Congress created the federal reserve system. Act of Dec. 23,1913, ch. 6,38 Stat. 251. After that war, it created several federal banking agencies with regulatory authority over both federal and state banks. Act of June 16, 1933, ch. 89, 48 Stat. 162. And in 1933, it provided for the federal chartering of savings banks. Act of June 13, 1933, ch. 62, 48 Stat. 128.\nThis latter history is relevant ter this Court held that federally chartered banks are subject to state law. See National Bank v. Commonwealth, 9 Wall. 353, 361 (1870). In National Bank the Court distinguished McCulloch by recalling that Maryland’s taxes were “used ... to destroy,” and it added that federal banks\n“are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation. All their contracts are *223governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional.” 9 Wall., at 362.\nThe Court subsequently found numerous state laws applicable to federally chartered banks. See, e. g., Davis v. Elmira Savings Bank, 161 U. S. 275, 290 (1896) (“Nothing, of course, in this opinion is intended to deny the operation of general and undiscriminating state laws on the contracts of national banks, so long as such laws do not conflict with the letter or the general objects and purposes of Congressional legislation”); First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 656 (1924) (national banks “are subject to the laws of a State in respect of their affairs unless such laws interfere with the purposes of their creation, tend to impair or destroy their efficiency as federal agencies or conflict with the paramount law of the United States”); Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U. S. 103 (1939) (applying state law to tort claim by depositor against directors of a national bank); Anderson Nat. Bank v. Luckett, 321 U. S. 233, 248 (1944) (“[Njational banks are subject to state laws, unless those laws infringe the national banking laws or impose an undue burden on the performance of the banks’ functions”); California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 (1987) (applying state employment discrimination law to federally chartered savings and loan association).\npurposes, consequence is the following: To point to a federal charter by itself shows no conflict, threat, or need for “federal common law.” It does not answer the critical question.\nThird, the FDIC refers to a conflict of laws principle called the “internal affairs doctrine” — a doctrine that this Court has described as\n*224“a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation’s internal affairs — matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders — because otherwise a corporation could be faced with conflicting demands.” Edgar v. MITE Corp., 457 U. S. 624, 645 (1982).\nStates normally look to the State of a business’ incorporation for the law that provides the relevant corporate governance general standard of care. Restatement (Second) Conflict of Laws §309 (1971). And by analogy, it has been argued, courts should look to federal law to find the standard of care governing officers and directors of federally chartered banks. See Resolution Trust Corporation v. Chapman, 29 F. 3d 1120, 1123-1124 (CA7 1994). this\nTo find a justification for ment, however, is to substitute analogy or formal symmetry for the controlling legal requirement, namely, the existence of a need to create federal common law arising out of a significant conflict or threat to a federal interest. O’Melveny, 512 U. S., at 85, 87. The internal affairs doctrine shows no such need, for it seeks only to avoid conflict by requiring that there be a single point of legal reference. Nothing in that doctrine suggests that the single source of law must be federal. See Chapman, supra, at 1126-1127 (Posner, C. J., dissenting). In the absence of a governing federal common law, courts applying the internal affairs doctrine could find (we do not say that they will find) that the State closest analogically to the State of incorporation of an ordinary business is the State in which the federally chartered bank has its main office or maintains its principal place of business. Cf. 61 Fed. Reg. 4866 (1996) (to be codified in 12 CFR § 7.2000) (federally chartered commercial banks may “follow the corporate governance procedures of the law of the state in which the main office of the bank is located”). So to apply state law, *225as we have said, would tend to avoid disparity between federally chartered and state-chartered banks (that might be next door to each other). And, of course, if this approach proved problematic, Congress and federal agencies acting pursuant to congressionally delegated authority remain free to provide to the contrary.\nFourth, the FDIC points to statutes that provide the OTS, a federal regulatory agency, with authority to fine, or to remove from office, savings bank officers and directors for certain breaches of fiduciary duty. The FDIC adds that in “the course of such proceedings, the OTS, applying the ordinary-care standard [of Briggs,] . . . has spoken authoritatively respecting the duty of care owed by directors and officers to federal savings associations.” Brief for Respondent 23-25 (citations omitted). The FDIC does not claim, however, that these OTS statements, interpreting a pre-existing judge-made federal common-law standard (i. e., that of Briggs) themselves amounted to an agency effort to promulgate a binding regulation pursuant to delegated congressional authority. Nor have we found, in our examination of the relevant OTS opinions, any convincing evidence of a relevant, significant conflict or threat to a federal interest.\nFinally, we note that here, as in O’Melveny, the FDIC is acting only as a receiver of a failed institution; it is not pursuing the interest of the Federal Government as a bank insurer — an interest likely present whether the insured institution is state, or federally, chartered.\nIn sum, we can find no significant conflict with, or threat to, a federal interest. The federal need is far weaker than was present in what the Court has called the “ Tew and restricted’ instances,” Milwaukee v. Illinois, 451 U. S. 304, 313 (1981), in which this Court has created a federal common law. Consider, for example, Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92 (1938) (controversy between two States regarding apportionment of streamwater); Boyle v. United Technologies Corp., 487 U. S. 500 (1988) *226(Federal Government contractors and civil liability of federal officials); United States v. Standard Oil Co. of Cal., 332 U. S. 301, 305 (1947) (relationship between Federal Government and members of its Armed Forces); Howard v. Lyons, 360 U. S. 593, 597 (1959) (liability of federal officers in the course of official duty); Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 425 (1964) (relationships with other countries). See also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981) (“[A]bsent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases”). Indeed, the interests in many of the cases where this Court has declined to recognize federal common law appear at least as strong as, if not stronger than, those present here. E. g., Wallis v. Pan American Petroleum Corp., 384 U. S. 63 (1966) (applying state law to claims for land owned and leased by the Federal Government); Kimbell Foods, 440 U. S., at 726, 732-738 (applying state law to priority of liens under federal lending programs). enun-\nWe conclude that the ciated in cases such as Briggs did not survive this . Court’s later decision in Erie v. Tompkins. There is no federal common law that would create a general standard of care applicable to this case.\nIll\nWe now turn to a further question: Does federal statutory law (namely, the federal “gross negligence” statute) supplant any state-law standard of care? The relevant parts of that statute read as follows:\n“A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request or *227direction of the Corporation ... acting as conservator or receiver ... for gross negligence, including any similar conduct or conduct that demonstrates a greater disregard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable State law. Nothing in this paragraph shall impair or affect any right of the Corporation under other applicable law.” 12 U. S. C. § 1821(k) (emphasis added).\nLower courts have taken different positions about whether this statute, in stating that directors and officers “may be held personally liable” for conduct that amounts to “gross negligence” or worse, immunizes them from liability for conduct that is less culpable than gross negligence such as simple negligence. Federal Deposit Insurance Corporation v. McSweeney, 976 F. 2d 532, 537, n. 5 (CA9 1992), cert. denied, 508 U. S. 950 (1993); Federal Deposit Insurance Corporation v. Canfield, 967 F. 2d 443, 446, n. 3 (CA10) (en banc), cert. dism’d, 506 U. S. 993 (1992); Federal Deposit Insurance Corporation v. Swager, 773 F. Supp. 1244 (Minn. 1991). See also Pet. for Cert, i (“The questions presented for review are: 1. Whether Section 1821(k) supplants ‘federal common law’ and constitutes the exclusive standard of liability in a civil damage action brought by the Resolution Trust Corporation ...”); Brief for American Bankers Association et al. as Amici Curiae 7-8.\nIn our view, the statute’s “gross negligence” standard provides only a floor — a guarantee that officers and directors must meet at least a gross negligence standard. It does not stand in the way of a stricter standard that the laws of some States provide.\nFor one thing, the language of the statute contains a saving clause that, read literally, preserves the applicability of stricter state standards. It says “[njothing in this paragraph shall impair or affect any right of the Corporation under other applicable law.” 12 U. S. C. § 1821(k) (emphasis *228added). The petitioner, in contending places federal common law, says that “any right” means only a right created elsewhere in the same Act of Congress, for example, by various regulatory enforcement provisions. E. g., § 1818(b) (cease-and-desist provision). But that is not what the Act says nor does its language compel so restrictive a reading. That language, read naturally, suggests an interpretation broad enough to save rights provided by other state, or federal, law. a\nFor another thing, Congress background of failing savings associations, see 135 Cong. Rec. 121 (1989) (statement of Rep. Roth); 135 Cong. Rec. 1760 (1989) (statement of Sen. Graham), large federal payments to insured bank depositors, and recent changes in state law designed to limit pre-existing officer and director negligence liability. See, e. g., Fla. Stat. § 607.0831 (1993) (“recklessness or an act or omission . . . committed in bad faith or with malicious purpose”); Ohio Rev. Code Ann. § 1701.59(D) (1994) (“deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation”). The state-law changes would have made it more difficult for the Federal Government to recover, from negligent officers and directors, federal funds spent to rescue failing savings banks and their depositors. And the background as a whole supports a reading of the statute as an effort to preserve the Federal Government’s ability to recover funds by creating a standard of care floor.\nThe legislative history, as this conclusion. Members of Congress repeatedly referred to the harm that liability-relaxing changes in state law had caused the Federal Government, hence the taxpayer, as federal banking agencies tried to recover, from negligent officers and directors, some of the money that federal insurers had to pay to depositors in their failed banks. E. g., 135 Cong. Rec. 7150-7151 (1989) (statement of Sen. Riegle) (“[T]he establishment of a Federal standard of care is based *229on the overriding Federal interest in protecting the soundness of the Federal Deposit Insurance Corporation fund and is very limited in scope. It is not a wholesale preemption of longstanding principles of corporate governance . . To have pre-empted state law with a uniform federal “gross negligence” standard would have cured the problem in some instances (where state law was weaker) but would have aggravated it in others (where state law was stronger).\nhistory says more. The relevant Senate Report addresses the point specifically. It says:\n“This subsection does not prevent the FDIC from pursuing claims under State law or under other applicable Federal law, if such law permits the officers or directors of a financial institution to be sued (1) for violating a lower standard of care, such as simple negligence.” S. Rep. No. 101-19, p. 318 (1989).\nThis Report was not published until two weeks after Congress enacted the law. But, as petitioner elsewhere concedes, the Report was circulated within Congress several weeks before Congress voted. In fact Senator Riegle, the Banking Committee Chairman, read the statement, on his own behalf and that of Senator Garn, six weeks before Congress voted on the law. 135 Cong. Rec. 12374 (1989). Contrast Clarke v. Securities Industry Assn., 479 U. S. 388, 407 (1987) (refusing to “attach substantial weight” to a Representative’s statement made 10 days after the enactment of the law).\nThe history is not all on one side. The Congressional Record contains one statement that suggests a competing congressional purpose, namely, to protect bank officers and directors from too strict a liability standard. 135 Cong. Rec. 7150 (1989) (statement of Sen. Sanford) (supporting “provisions relating to State laws affecting the liability of officers and directors of financial institutions” because “these changes are essential if we are to attract qualified officers *230and directors to serve in our financial have not found other such statements. And that statement is inconsistent with the language of the Senate Report. It suggests an interpretation of the statute largely rejected in the lower courts, namely, that it pre-empts stricter state law as applied to state-chartered, as well as to federally chartered, institutions. See, e. g., McSweeney, 976 F. 2d, at 540-541 (rejecting the interpretation as applied to state-chartered banks); Canfield, 967 F. 2d, at 448-449 (same). alternative\nThe petitioner, in ground in this Court, made a final complicated argument to explain why 12 U. S. C. § 1821(k) displaces federal common law. He points to the universally conceded fact that the “gross negligence” statute applies to federal, as well as to state, banks. He then assumes, for sake of the argument, that in the absence of the statute, federal common law would determine liability for federal banks. He then asks why Congress would have applied the “gross negligence” statute to federal banks unless it wanted that statute to set an absolute standard, not a floor. After all, on the assumption that, without the statute, federal common law would hold federal directors and officers to a standard as strict, or stricter, there would have been no need for the statute unless (as applied to federal banks) it intended to set a universal standard, freeing officers and directors from the potentially less strict standard of the common law, and not what, given the assumptions, would be a totally unnecessary floor. This argument, taken to its logical conclusion, would also suggest that state standards of simple negligence would be displaced by the federal gross negligence statute. lies\nOne obvious short answer in the fact that our conclusion in Part II runs contrary to the argument’s critical assumption, namely, that federal common law sets the standard of liability applicable to federal banks. State law applies. Without that assumption, the need for a “gross negligence” floor in the ease of federally chartered banks is identical to the need in the case of state-chartered *231banks. In both instances, the floor is needed to limit state efforts to weaken liability standards; in both instances a floor serves that purpose; and the reasons for believing the statute only sets such a floor are equally strong.\nA more thorough answer lies in the fact that Congress nowhere separated its consideration of federally chartered, from that of state-chartered, banks. Congress did not ask whether- one looked to federal common law or to state law to find the liability standard applicable to federally chartered banks. Nor did it try to determine the content of federal common law. One can reconcile congressional silence on the matter with a “gross negligence” statute, the language of which brings all banks (federal- and state-chartered) within its scope, simply by assuming that Congress, when enacting the statute, wanted to leave other law, including the law applicable to federally chartered banks, exactly where Congress found it. That, after all, is what the statute says. And the saving clause language taken at face value permits Congress to achieve its basic objective (providing a “gross negligence” floor) without having to unravel the arcane intricacies of federal common law. In our view, this understanding of congressional intent better explains the statute’s language and history than the petitioner’s interpretation, imputing to Congress an intent to apply a uniform “gross negligence” standard to federally chartered, but not state chartered, institutions.\nFor these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.\n\nIt is so ordered.\n\n", "ocr": false, "opinion_id": 9433404 }, { "author_str": "O'Connor", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJustice O’Connor,\nwith whom Justice Scalia and Justice Thomas join,\nconcurring in part and concurring in the judgment.\nI join all of the Court’s opinion, except to the extent that it relies on the notably unhelpful legislative history to 12 U. S. C. § 1821(k). Ante, at 228-230. As the Court cor*232rectly points out, the most natural reading of the saving clause in §1821(k) covers both state and federal rights. Ante, at 228. With such plain statutory language in hand, there is no reason to rely on legislative history that is, as the majority recognizes, “not all on one side.” Ante, at 229.\n", "ocr": false, "opinion_id": 9433405 } ]

[ "633 F.2d 579" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/633/633.F2d.579.79-3299.html", "author_id": null, "opinion_text": "633 F.2d 579\n dPetrofskyv.Ernst\n 79-3299\n UNITED STATES COURT OF APPEALS Fifth Circuit\n 11/17/80\n \n 1\n S.D.Tex.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 383582 } ]

[ "675 F.2d 949" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/675/675.F2d.949.81-2459.81-2307.html", "author_id": null, "opinion_text": "675 F.2d 949\n 10 Fed. R. Serv. 1056\n Mary Jean GARDNER, Plaintiff-Appellant,v.SOUTHERN RAILWAY SYSTEMS, Defendant-Appellee.\n Nos. 81-2307, 81-2459.\n United States Court of Appeals, Seventh Circuit.\n Argued Feb. 26, 1982.Decided April 22, 1982.\n \n David E. Gray, Bowers, Harrison & Kent, Evansville, Ind., for defendant-appellee.\n David V. Miller, Grove, Miller & Krohn, Evansville, Ind., for plaintiff-appellant.\n Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and BARTELS, Senior District Judge.*\n PER CURIAM.\n \n \n 1\n Appellant, Mary Jean Gardner, personal representative of the estate of her late husband, Gregory Gardner, appeals from a judgment of the United States District Court for the Southern District of Indiana, Evansville Division (Brooks, J.), after a jury trial in favor of appellee, the Southern Railway Company.\n \n \n 2\n Appellant raises two issues on appeal: (1) whether the district court erred by excluding appellant's evidence of a prior collision through which appellant sought to charge the Railway with notice of a dangerous condition at a railway intersection and (2) whether the district court erred in allowing appellee to amend its answer shortly before trial, denying that the deceased stopped his truck prior to crossing the railroad tracks. On cross-appeal, the Railway claims that the district court's denial of its Motion for Bill of Costs was an abuse of discretion. We affirm as to the issues raised by the appellant and reverse and remand for further proceedings as to the issue raised by the Railway.\n \n \n 3\n This action arises out of a fatal collision involving the deceased, Gregory Gardner, which occurred at a railway crossing at approximately 9:45 A.M. on February 24, 1978 in Pike County, Indiana while deceased was driving an empty coal-hauling truck north in Pike County Road 100 West. While crossing the railroad's tracks at the junction of County Road 100 West, he was struck and killed by a westbound Southern Railway Company train, consisting of three engines, one car and a caboose.\n \n \n 4\n In her complaint, filed February 4, 1980, appellant claimed that at the time of the accident, the Railway was negligent in failing to maintain its crossing so as to provide decedent with an unobstructed view of the Railway's tracks as required by Indiana Code 8-6-7.6-1. The testimony of the officer in charge of investigating the accident, ex-State Trooper Davis, established that at the time of the collision deceased did not have the sight distance required by the Indiana Code because of trees, brush and undergrowth which obstructed his view.\n \n \n 5\n Sometime following the February 24, 1978 collision, through discovery proceedings, appellant discovered that on November 30, 1976, another fatal collision involving the Railway's train and a truck had occurred at the same crossing. An examination of photographs taken at the time of that collision revealed that the physical conditions at the time were essentially the same as those on February 24, 1978. The Indiana State Police Accident Report made of that prior accident disclosed that the accident occurred under substantially the same circumstances as the collision involving the deceased. However, on April 18, 1981, the Railway filed a Motion in Limine requesting the court to exclude all evidence of the prior collision. On April 15, 1981, appellant filed its Memorandum in Opposition to this Motion maintaining that by reason of the prior accident, the Railway was charged with notice of the extra-hazardous conditions at the crossing fifteen months before the collision involving the deceased. At its final pre-trial conference on June 12, 1981, the Court granted the Railway's Motion in Limine.\n \n \n 6\n At trial, appellant offered to prove notice to the Railway of a dangerous and hazardous condition by other means such as photographs of the crossing taken on the day of the prior accident and the testimony of the two Indiana State Police Officers who investigated the prior accident. The photographs and the testimony of both officers with respect to their investigation of the collision were excluded. The Court did, however, permit one officer to testify (without being identified as a police officer) to the fact that he had been at the crossing prior to the subject collision and to relate what he had observed.\n \n \n 7\n We refer now to the second issue raised by appellant. In its original answer, filed March 6, 1980, the Railway admitted that the deceased stopped his vehicle at the fatal intersection. Additionally, on April 15, 1980, the Railway filed a Request for Admissions in which it asked appellant to admit that the deceased had stopped his vehicle at the critical intersection. Nevertheless, on May 15, 1981, the final day of discovery, the Railway moved the court for leave to amend its answer to raise as a factual question the issue of whether or not the deceased had stopped his truck prior to attempting to cross the railroad tracks.\n \n \n 8\n There was other evidence concerning the stop at the railroad crossing on the day of the collision. The Railway's employee, Gordon Byrd, obtained a tape-recorded statement from a witness, Randal Lewis, who was driving a vehicle a short distance behind the deceased at the time of the accident. At that time, Lewis said that he saw no taillights go on in the rear of the deceased's truck. This statement was used by the Railway to impeach Lewis at trial. The tape recording had never been turned over to appellant during discovery although it was submitted to the jury with appellant's consent.\n \n \n 9\n Our final consideration is the Railway's cross-appeal. A Bill of Costs was filed by the Railway on July 9, 1981, wherein it requested that certain expenses amounting to Two Thousand Nine Hundred Fifty-one Dollars and Sixty-five Cents ($2,951.65) incurred by the Railway in connection with the trial be taxed to the appellant. Appellant filed her Objection to the demand for Taxation of Costs and Memorandum in Support of her Objections thereto, on July 15, 1981. The Railway's Reply to Plaintiff's Objection to Taxation of Costs was filed on July 24, 1981. No other pleadings were filed on this issue and no hearing was held. On August 3, 1981, the district court issued an order denying the Railway's motion for Bill of Costs. But the order contained no finding that the Railway had been guilty of any misconduct or that appellant was indigent. Accordingly, the Railway cross-appealed the denial of its Bill of Costs pursuant to 28 U.S.C. § 1291.\n \n PRIOR ACCIDENT\n \n 10\n We agree with appellant's interpretation of the law applicable to prior accident evidence in railroad collision cases. A railroad can be found negligent not only in the manner in which it operates its trains, but also because it failed to take adequate precautions at a grade crossing which it knew or should have known to be extra-hazardous. Stevens v. Norfolk & W. Ry. Co., 171 Ind.App. 334, 357 N.E.2d 1, 4 (1977); see also Menke v. Southern Railway Company, 603 F.2d 1281 (7th Cir. 1979). Evidence of prior accidents which occurred at that crossing under similar conditions may be admitted to show that the railroad had prior knowledge that a dangerous and hazardous condition existed.1 New York Central Railroad Co. v. Sarich, 133 Ind.App. 516, 180 N.E.2d 388, 398 (Ind.App.Ct.1965); 5A Personal Injury § 1.05(1)(j), pp. 124-27. Moreover, as the Third Circuit and other circuits suggest, it is appropriate to relax the requirement of similar conditions when the offer of proof is to show notice of the dangerous character of the crossing rather than defendant's negligence. Evans v. Pennsylvania Railroad Co., 255 F.2d 205, 210 (3rd Cir. 1958); McCormick, Evidence (Horn Book Series), p. 352; compare McCormick v. Great Western Power Co., 214 Cal. 658, 8 P.2d 145, 81 A.L.R. 678 (1932); City of Taylorville v. Stafford, 196 Ill. 288, 63 N.E. 624 (1902).\n \n \n 11\n The controlling principle in cases of this type, however, appears in Rule 403 of the Federal Rules of Evidence, reading:\n \n \n 12\n Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\n \n \n 13\n Unless we find, therefore, that the district court abused its discretion in excluding the evidence, we must affirm. United States v. Catalano, 491 F.2d 268, 274 (2nd Cir.), cert. denied, 419 U.S. 825, 95 S. Ct. 42, 42 L. Ed. 2d 48 (1974); Shepard v. General Motors Corp., 423 F.2d 406, 408 (1st Cir. 1970).\n \n \n 14\n Judge Brooks undoubtedly considered many factors including photographs in rendering his decision. First, conditions and surrounding circumstances at the crossing at the time of the prior accident on November 30, 1976, were different, at least in some respects, from those which existed on February 24, 1978. Second, because no action was ever brought nor any claim filed on behalf of the previous decedent, it is not known whether conditions at the crossing or decedent's own negligence were responsible for the 1976 accident. That no action was ever brought may suggest the latter. Third, notwithstanding the ambiguity surrounding the prior accident, the jury might infer from evidence of the prior accident alone that ultra-hazardous conditions existed at the site and were the cause of the later accident without those issues ever having been proved. In any case, the district court permitted appellant to present testimony that the conditions which existed at the crossing at the time of the February 24, 1978 collision had been evident some time before. Thus the dangerous conditions were presented in a non-prejudicial manner. These facts could certainly lead a reasonable person to conclude that the danger of prejudice and delay from admitting such evidence would substantially outweigh its probative value. Under these circumstances, we find no abuse of discretion in excluding this evidence.2\n \n THE AMENDED ANSWER\n \n 15\n Appellant asserts that the district court erred in allowing the Railway to amend its answer shortly before trial to the prejudice of the appellant and despite undue delay, bad faith and dilatory motive on the part of the Railway. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend his or her pleading more than twenty days after it is served \"only by leave of court or by written consent of the adverse party: and leave shall be freely given when justice so requires.\"\n \n \n 16\n In Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962), the leading case upon this question, the Supreme Court stated:\n \n \n 17\n If the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of amendment, futility of amendment, etc.-the leave sought should, as the rules require, be \"freely granted.\"\n \n \n 18\n Of course, the Court added, \"the grant or denial of an opportunity to amend is within the discretion of the District Court ....\" Id.\n \n \n 19\n The Railway pleaded contributory negligence in its original answer and so alerted appellant to the possibility that an argument would be made as to the non-stop. The Railway filed its motion for leave to amend its answer only once it became apparent both that eyewitness Lewis intended to change the story he had originally told the Railway and that appellant had no unimpeachable testimony of deceased's stopping. Appellant filed her own series of motions3 at the eleventh hour. In any event, appellant was left with at least twenty-six days following the Railway's motion in which to respond, which would seem to have been more than sufficient since appellant knew of all the possible eyewitnesses. Under these circumstances, the district court's decision seems perfectly reasonable.\n \n \n 20\n Appellant also asserts that appellee should have been bound by its admission regarding the deceased's stopping contained in its own Request for Admissions. Rule 36(b) of the Federal Rules of Civil Procedure indeed provides that \"(a)ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.\" The rule continues:\n \n \n 21\n Subject to the provisions of Rule 16 governing amendments of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and any party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.\n \n \n 22\n Although the Railway never sought to amend this particular admission, it did seek and obtain leave to amend its answer following the last pre-trial conferences denying that a stop was made by the deceased. The purpose of Rule 36 is to permit the person obtaining the admission to rely thereon in preparation for trial. Compare Moosman v. Blitz, 358 F.2d 686 (2d Cir. 1966). There is no way in which appellant in this case could have relied on such admission to her prejudice in view of the amendment to the Railway's answer as permitted by the court. Under the circumstances of this case, permission to amend the answer was tantamount to permission to withdraw the admission.\n \n THE CROSS-APPEAL\n \n 23\n On cross-appeal, the Railway asserts that the district court's denial of its Bill of Costs, without finding either that appellee was guilty of some misconduct or that appellant was indigent, was an abuse of discretion. Rule 54(d) of the Federal Rules of Civil Procedure4 creates a presumption that the prevailing party is entitled to costs. Lichter Foundation, Inc. v. Welch, 269 F.2d 142, 146 (6th Cir. 1959); 10 C. A. Wright and A. R. Miller, Federal Practice and Procedure, Civil, § 2668 at 142 (1973). To overcome that presumption the losing party must show something more than mere good faith on its part. Popeil Brothers, Inc. v. Schick Electric, Inc., 516 F.2d 772, 776 (7th Cir. 1975). We have no evidence of such a showing here. Moreover, the district court failed to explain why it denied appellee's Bill of Costs.\n \n \n 24\n When a trial court refuses to award costs to the prevailing party, it should state its reasons for such disallowance. Unless an appellate court knows why a trial court refused to award costs to the prevailing party, it has no real basis upon which to judge whether the trial court acted within the proper confines of its discretion. Walters v. Roadway Exp., Inc., 557 F.2d 521 (5th Cir. 1977).\n \n \n 25\n Serna v. Manzano, 616 F.2d 1165, 1168 (10th Cir. 1980).\n \n \n 26\n Judgment affirmed except as to costs and remanded for a redetermination of costs and findings in case of disallowance.\n \n \n \n *\n Of the United States District Court for the Eastern District of New York\n \n \n 1\n In a number of jurisdictions, before evidence of prior accidents is admissible to show notice, it must be shown that a specific physical or structural condition of the crossing was a proximate or contributing cause of the present collision. 5A Personal Injury § 1.05(1)(j), pp. 126-27; see Jewell v. Pennsylvania R.R., 55 Del. 6, 183 A.2d 193 (1962); So. Pac. R.R. v. Watkins, 83 Nev. 471, 435 P.2d 498 (1967); So. Pac. R. R. v. Harris, 80 Nev. 426, 395 P.2d 767 (1964)\n \n \n 2\n In Young v. Illinois Central Gulf R. R. Co., 618 F.2d 332 (5th Cir. 1980), there are so many other rulings constituting abuses of discretion that the case can hardly support the proposition that the simple failure to admit prior accident testimony was itself an abuse\n \n \n 3\n Appellant's Specifications of Negligence and witness lists were filed seven days prior to the original trial date of March 23, 1981 instead of January 15, 1981, as was requested by the court, forcing appellee to seek a continuance. Appellant's Motion for Leave to Add Additional Witnesses and Exhibits, the first clear indication that appellant intended to offer prior collision evidence, was filed ten days before the rescheduled trial date of April 13, 1981. On May 15, 1981, the last day of discovery before the yet rescheduled trial date of June 15, 1981, appellant added an additional Specification of Negligence. Finally, during trial appellant again moved to amend her allegations to conform to her evidence\n \n \n 4\n Rule 54(d) of the Federal Rules of Civil Procedure reads:\n Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs ... (emphasis added).\n \n \n ", "ocr": false, "opinion_id": 402413 } ]

[ "106 N.E.2d 425", "329 Mass. 70" ]

[ { "author_str": "Williams", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4759, "opinion_text": "\n329 Mass. 70 (1952)\n106 N.E.2d 425\nWILLIAM F. WALL\nvs.\nREGISTRAR OF MOTOR VEHICLES & others.\nSupreme Judicial Court of Massachusetts, Middlesex.\nMarch 3, 1952.\nMay 29, 1952.\nPresent: LUMMUS, RONAN, WILKINS, SPALDING, & WILLIAMS, JJ.\nGeorge P. Lordan, for the petitioner.\nLenahan O'Connell, Assistant Attorney General, for the respondent.\nWILLIAMS, J.\nThis is a petition for a writ of certiorari to quash certain orders of the registrar of motor vehicles and of the board of appeal established by G.L. (Ter. Ed.) c. 90, § 28, as appearing in St. 1950, c. 536.\nThe petitioner has appealed from a final judgment of the Superior Court by which the petition was dismissed \"as matter of law.\"\nThe following facts were alleged in the petition. The petitioner's license to operate motor vehicles was suspended by the registrar without hearing on July 30, 1951, for the reason, as stated in the notice by the registrar to the petitioner, that \"it has been reported officially to me that you operated a motor vehicle after drinking intoxicating liquor, on July 7, 1951, in Cambridge.\" On August 9, 1951, the petitioner applied to the registrar for a return of his license, which application was denied. \"Thereafter\" the petitioner appealed to the board of appeal from the action of the registrar \"in denying a reissuance of his license.\" The appeal was heard on September 11, 1951, and on September 14, 1951, an order was entered by the board \"affirming the decision of the registrar.\" It is prayed that a \"writ of certiorari issue quashing the order of July 30, 1951, suspending *72 the petitioner's license to operate a motor vehicle upon the public ways of this Commonwealth and quashing also the order of the board of appeal affirming the order of said registrar of July 30, 1951.\"\nThe return of the respondents, which is in the form of an answer, admits the above facts as stated. It was agreed by the parties that at the hearing before the board of appeal no evidence was offered by the petitioner, his only contention being that the decision of the registrar was erroneous as matter of law.\nThe registrar and the members of the board of appeal should not have been joined as respondents in a single petition. The \"decision on appeal supersedes the first decision ... and constitutes the final action of the administrative agency which alone is subject to judicial review.\" Marshall v. Registrar of Motor Vehicles, 324 Mass. 468, 469. The return, instead of being in the form of an answer, should have stated the proceedings of which review is sought. Byfield v. Newton, 247 Mass. 46, 52. As no point, however, has been made of these informalities of procedure, we consider the case on its merits. Byfield v. Newton, supra, at page 53.\nBy G.L. (Ter. Ed.) c. 90, § 22, as amended by St. 1933, c. 191, and St. 1941, c. 312, the registrar is given authority to suspend a license to operate motor vehicles without a hearing \"whenever he has reason to believe that the holder thereof is an improper or incompetent person to operate motor vehicles, or is operating improperly or so as to endanger the public.\" Such license shall not be reissued \"unless, upon examination or investigation, or after a hearing, the registrar determines that the operator should again be permitted to operate.... Upon the suspension or revocation of any license or registration the registrar shall forthwith send written notice thereof to the licensee or registrant as the case may be, and such notice, in case of the suspension of a license to operate a motor vehicle because of the improper operation thereof, shall specify the time and place of such improper operation.\" Under G.L. (Ter. Ed.) *73 c. 90, § 28, as appearing in St. 1950, c. 536, a person aggrieved by a decision of the registrar may, within ten days thereafter, appeal from the decision to the board of appeal.\nThe cause for the suspension of the petitioner's license by the registrar was stated in the notice. This notice did not state that the holder of the license was an improper or incompetent person to operate motor vehicles or that the licensee did operate so as to endanger the public. It apparently referred to \"improper operation\" as that is the only reason for suspension respecting which the statute requires a statement in the notice of \"time and place.\" Wide discretion is vested in the registrar as to the revocation or suspension of licenses of persons who operate motor vehicles on the public ways, but his discretion is not to be exercised arbitrarily or without regard to the purpose for which his authority to revoke or suspend is granted. The operation of a motor vehicle by one under the influence of intoxicating liquor is a criminal offence, G.L. (Ter. Ed.) c. 90, § 24 (1) (a), (b), as amended, and on conviction of such offence the revocation of the offender's license is required. Here no assertion of the operator's intoxication was stated in the registrar's notice. The intoxicating liquor alleged to have been consumed so far as it appears might have been of trivial amount, and have been taken at a time substantially earlier than the operation of the motor vehicle on July 7, 1951. From the facts stated in the notice, the registrar did not, in our opinion, have \"reason to believe\" that the licensee was operating improperly on that date. He was therefore not justified in suspending the petitioner's license.\nThe petitioner does not allege that an appeal was taken from the decision of the registrar suspending the license, although he prays that the order of July 30, 1951, and the order of the board of appeal affirming that order be quashed. He states that his appeal was from the decision of the registrar \"denying a reissuance of ... [the petitioner's] license.\"\nThere is nothing in the return to indicate that the decision of the registrar on the application for reissuance of the *74 license and the affirmation of that decision by the board of appeal were based on any evidence or reason other than that stated in the notice of suspension. We think, therefore, that the petitioner is entitled to have his license reissued. The judgment of the Superior Court is reversed. Judgment is to be entered quashing the order of the board of appeal and ordering entry by that board of an order annulling the decision of the registrar denying the application of the petitioner for reissuance of his license.\nSo ordered.\n", "ocr": false, "opinion_id": 2206936 } ]

[ "735 F.2d 884" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/735/735.F2d.884.83-1074.html", "author_id": null, "opinion_text": "735 F.2d 884\n 1984-2 Trade Cases 66,097, 15 Fed. R. Serv. 1956\n ADJUSTERS REPLACE-A-CAR, INC., Plaintiff-Appellant Cross-Appellee,v.AGENCY RENT-A-CAR, INC., Defendant-Appellee Cross-Appellant.WAKELY & ASSOCIATES, INC., Plaintiff-Appellant Cross-Appellee,v.AGENCY RENT-A-CAR, INC., Defendant-Appellee Cross-Appellant.\n No. 83-1074.\n United States Court of Appeals,Fifth Circuit.\n July 9, 1984.Rehearing and Rehearing En Banc Denied Aug. 20, 1984.\n \n McFarland & Tondre, Brice A. Tondre, Houston, Tex., Robert R. Biechlin, Jr., San Antonio, Tex., for plaintiffs-appellants cross-appellees.\n Terry S. Bickerton, Deborah D. Williamson, A. Michael Ferrill, Cox & Smith, Inc., San Antonio, Tex., William R. Pakalka, Fulbright & Jaworski, Houston, Tex., for defendant-appellee cross-appellant.\n Appeals from the United States District Court for the Western District of Texas.\n Before JOHNSON, HIGGINBOTHAM, and DAVIS, Circuit Judges.\n PATRICK E. HIGGINBOTHAM, Circuit Judge:\n \n \n 1\n We review the granting of judgment n.o.v. to the defendant in this private antitrust suit brought by Adjusters Replace-A-Car and Wakely & Associates, two insurance replacement car rental firms, against their rival, Agency Rent-A-Car, Inc. The principal accusation is that Agency employed predatory pricing in the San Antonio and Austin markets as part of an attempt to monopolize in violation of section two of the Sherman Act. Adjusters also charges that Agency hired away an essential employee in an attempt to monopolize the Corpus Christi market. Because we agree with the district court that plaintiffs failed to present a jury question regarding any of these claims, we affirm the judgment for Agency.\n \n \n 2\n * Adjusters, Wakely, and Agency all operated in a segment of the rental car business, providing replacement cars to persons whose cars had been stolen or damaged in an accident. The replacement rental firm deals directly with insurance adjusters, and is able to offer a lower rate than the standard public rental firms because its rentals are often long-term and its operating and advertising costs are less. To the extent that firms specializing in insurance replacement rentals cannot satisfy the demand for such services, the public rental firms will also provide this service, though ordinarily at a higher cost to the insurer. The record indicates that a public rental firm wishing to compete directly in the insurance replacement segment of the market would be able to do so with relative ease.\n \n \n 3\n In September 1973, Adjusters became the first insurance replacement rental firm to enter the San Antonio market. Wakely and Agency entered that market in October 1974, each charging a daily rental of $9.50; Adjusters' rate was then $8.50. Dissatisfied with its unprofitably small portion of the insurance replacement rental market in San Antonio, Agency cut its rental rate there to $8.00 per day in March 1975. When this tactic failed to increase its market share significantly, Agency in November 1975 reduced its rental rate to $7.00 per day.\n \n \n 4\n At $7.00, Agency began to make substantial inroads into the San Antonio market. After four months it began increasing its price, first to $7.50, then to $8.00, and by July 1976 to $8.50. Agency admits that in San Antonio it suffered a net operating loss during the sixteen month period that its rental rate was set at $8.00 and below, and Adjusters and Wakely charge that Agency continued losing money until it raised its rental rate to $9.50 in February 1977.\n \n \n 5\n In the Austin market, which Adjusters entered in December 1974 and Agency entered in November 1975, the $7.00 rental rate again proved a powerful tool with which Agency carved out a substantial share of the market. Agency's pricing in Austin evidently paralleled its pricing in San Antonio, and it again appears that Agency suffered net operating losses while offering the cheaper rate.\n \n \n 6\n In December 1977, Adjusters left the Austin market and was replaced by Wakely, which charged first $10.00 and then $11.00; Agency was apparently charging $10.45 when Wakely entered that market. Agency cut its Austin rental rate to $9.00 in January 1979. Wakely initially responded with an $8.50 rate, but closed its Austin office after April 1979.\n \n \n 7\n Adjusters opened its Corpus Christi office in January 1975, and held the great percentage of that market by the time Agency opened there in May 1976. Agency came to prominence, however, after it hired away Adjusters' office manager, Patty Manges, who brought many of Adjusters' clients with her to Agency. So successful was Agency that Adjusters left Corpus Christi by March 1977.\n \n \n 8\n Adjusters went out of business in March 1978, closing its San Antonio office. Adjusters' Dallas office, not involved in this litigation, had closed in July 1977. Wakely continues to operate in San Antonio. Both companies argue that their business reversals were due to anticompetitive conduct by Agency, which was allegedly attempting to monopolize the insurance replacement rental market in San Antonio, Austin, and Corpus Christi.\n \n II\n \n 9\n Section 2 of the Sherman Act, 15 U.S.C. Sec. 2, makes it unlawful for any person to \"monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states.\" A party injured by such anticompetitive conduct may sue to recover treble damages under section 4 of the Clayton Act, 15 U.S.C. Sec. 15. Here the claim is one of attempted monopolization by Agency, and the burden on the plaintiffs is to prove the elements of this offense and a causal relationship between the Agency's anticompetitive conduct and the plaintiffs' proven damages. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787, 795 (5th Cir.1983).\n \n \n 10\n The elements of an attempted monopolization under Sec. 2 of the Sherman Act are: \"(1) specific intent to accomplish the illegal result; and (2) a dangerous probability that the attempt will be successful.\" Spectrofuge Corp. v. Beckman Instruments, Inc., 575 F.2d 256, 276 (5th Cir.1978), cert. denied, 440 U.S. 939, 99 S. Ct. 1289, 59 L. Ed. 2d 499 (1979). The intent must be to do more than compete vigorously; vigorous competition is precisely what the antitrust laws are designed to foster. Thus, \"[a] statement of intent to compete ... even if perceived as a threat is not unlawful. Such a manifestation of intent to triumph in the competitive market, in the absence of unfair, anticompetitive or predatory conduct, is not enough to establish an antitrust violation.\" Hayes v. Solomon, 597 F.2d 958, 977 (5th Cir.1979), cert. denied, 444 U.S. 1078, 100 S. Ct. 1028, 62 L. Ed. 2d 761 (1980). Rather, the forbidden specific intent is that of acquiring and exercising \"the power to fix prices or to exclude competition.\" United States v. du Pont & Co., 351 U.S. 377, 391, 76 S. Ct. 994, 1005, 100 L. Ed. 1264 (1956); American Tobacco Co. v. United States, 328 U.S. 781, 811, 66 S. Ct. 1125, 1140, 90 L. Ed. 1575 (1946); Spectrofuge, 575 F.2d at 276.\n \n \n 11\n Adjusters and Wakely argue that the jury was entitled to infer that Agency had the requisite intent and was dangerously likely to succeed at monopolizing the insurance rental market in the relevant geographical area from evidence that Agency's pricing and operational strategies drove competitors from the marketplace when market conditions prevented other firms from entering the market to compete with Agency. The specific conduct which plaintiffs allege was anticompetitive is Agency's use of a predatory pricing regimen in San Antonio and Austin, and Agency's deliberate efforts to \"steal\" Adjusters' Corpus Christi customers by hiring away Adjusters' office manager in that city. Adjusters and Wakely claim that this anticompetitive conduct caused them injury in their trade or business.\n \n \n 12\n Responding to interrogatories, the jury found that Agency had attempted to monopolize the insurance replacement car market in San Antonio and Austin by means of its pricing in 1975 and 1976, in Austin by means of its pricing in 1978 and 1979, and in Corpus Christi by means of hiring Patricia Manges. Total damages, without trebling, were set at $800,000.1\n \n \n 13\n Defendants moved for judgment notwithstanding the verdict, and filed a brief supporting the motion. On this basis, the trial judge granted a judgment n.o.v. and dismissed the case.2 Adjusters and Wakely appeal.3\n \n III\n \n 14\n There is obviously a tension inherent in the legal assignment to protect competition but not competitors. Fighting hard but fair, avoiding ruinous competition and avoiding predation are often-used catchwords that fail in their central normative purpose--they do not segregate desired and undesired conduct in the marketplace. As a seeming precursor to the current willingness of courts to be informed by economics, Professors Areeda and Turner, lawyer and economist, undertook to suggest measures with content. Their effort was sufficiently successful that the starting point for an analysis of a predatory pricing claim is now their influential article, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv.L.Rev. 697 (1975), in which they analyze a firm's pricing in terms of that firm's average total cost, average variable cost, and marginal cost of production.\n \n \n 15\n Basic economic theory subscribed to by Areeda and Turner teaches that in a perfectly competitive market a small manufacturer's price is dictated by the marketplace, and his production will be at the level where the marginal cost of producing another unit of output exactly equals the price that he will receive for this unit. A manufacturer's costs are divided between fixed costs, which do not vary with the level of production and cannot be avoided even if production shrinks to zero, and variable costs, which do vary with production and roughly equal the cost of the resources necessary to produce additional units of output. Because marginal cost is an economic concept with no exact counterpart in accounting, Areeda and Turner employ average variable cost as a surrogate for marginal cost.4\n \n \n 16\n According to Areeda and Turner, a firm is always acting reasonably if it charges a price for its output that enables it to recover at least its average variable costs, because at that price the company is recovering the costs associated with producing each individual unit of output. The firm will, of course, prefer to recover its average total cost, but if it is unable to do so it will minimize its losses if it produces those units of output for which it can recover at least its variable costs. This is so because, in the short run at least, a firm cannot escape paying its fixed costs even if it reduces its production to zero.\n \n \n 17\n Areeda and Turner argue that predatory pricing occurs only when a firm sets its price at a level below its average variable cost. At this price, the firm is suffering a loss on every unit of output it produces and sells, and its behavior is rational only if it hopes by engaging in this conduct to drive its competitors from the market and thereby gain monopoly powers that will enable it to charge a monopoly price in the future. This sort of pricing conduct is economically undesirable because the monopoly profits garnered by the monopolist over the long term will more than offset the short term benefit to consumers of the low predatory price. Competitors, of course, are harmed also, either by being driven from the market or by being disciplined into following the price leadership of the monopolist.\n \n \n 18\n In this court's first major statement on predatory pricing following publication of the Areeda-Turner article, we adopted much of its analysis. International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir.1975), cert. denied, 424 U.S. 943, 96 S. Ct. 1411, 47 L. Ed. 2d 349 (1976). We defined \"predatory\" to mean that the defendant \"must have at least sacrificed present revenues for the purpose of driving [plaintiff] out of the market with the hope of recouping the losses through subsequent higher prices.\" Id. at 723. We agreed with Areeda and Turner that \"a price above average cost is a fairly competitive price for it is profitable to the monopolist if not to its rivals; in effect, the price excludes only less efficient firms.\" Id. By contrast, \"a firm's pricing behavior can be considered anticompetitive when it sells at a price below its average variable cost.\" Id. at 724.\n \n \n 19\n One important exception to the principle that a price above average variable cost is presumed lawful occurs when there are substantial barriers to new entry into the relevant market. In such a case, we expressed concern that even a price above average variable cost might enable a monopolist to drive an existing competitor out of the market, whereafter the entry barriers would enable the monopolist to realize substantial monopoly profits. As the barriers to entry increase, so does the degree to which the monopolist's price may exceed his average variable cost and yet still be deemed predatory. Id. at 724-25 & n. 31. In sum:\n \n \n 20\n [I]n order to prevail as a matter of law, a plaintiff must at least show that either (1) a competitor is charging a price below his average variable cost in the competitive market or (2) the competitor is charging a price below its short-run, profit-maximizing price and barriers to entry are great enough to enable the discriminator to reap the benefits of predation before new entry is possible.\n \n \n 21\n Id. at 724 (footnotes omitted). Finally, we cautioned that it is \"important to look to the price discriminator's costs, rather than his competitor's cost, to determine whether the price discrimination was anti-competitive.\" Id. at 724-25.\n \n \n 22\n The objective economic approach to predation that we adopted in American Excelsior is still the law of this circuit. At the same time, however, we declined to adopt Areeda and Turner's proposed per se test for predatory pricing whereby a price above average variable cost would be per se non-predatory and a price below average variable cost per se predatory. We were unwilling, in an attempted monopolization case, to relegate the intent element to the status of an automatic and irrebuttable inference.\n \n \n 23\n That interest in the defendant's intent surfaced in Malcolm v. Marathon Oil Co., 642 F.2d 845 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S. Ct. 975, 71 L. Ed. 2d 113 (1981), where we declared that \"[p]redatory pricing differs from healthy competitive pricing in its motive: a predator by his pricing practices seeks 'to impose losses on other firms, not garner gains for itself.' \" Id. at 853-54, quoting L. Sullivan, Handbook of the Law of Antitrust 111 (1977). While the Malcolm panel noted the ongoing debate between partisans of an economic test for predation--the Areeda-Turner approach--and partisans of an intent test--the Sullivan approach--and disclaimed any view of the merits of these alternative analytical frameworks, id. at 854 n. 17, this court had already joined the economic camp in American Excelsior, and that decision bound the panel deciding Malcolm as it binds this panel. See White v. Estelle, 720 F.2d 415, 417 (5th Cir.1983).\n \n \n 24\n Our latest statement on predatory pricing briefly iterates the teaching of American Excelsior:\n \n \n 25\n One seeking to establish predatory pricing must demonstrate that the defendant \"at least sacrificed present revenues for the purpose of driving [the plaintiff] out of the market with the hope of recouping losses through subsequent higher prices.\" International Air Industries v. American Excelsior Co., 517 F.2d 714, 723 (5th Cir.1975), cert. denied, 424 U.S. 943, 96 S. Ct. 1411, 47 L. Ed. 2d 349 (1976). Generally, in order to prove that the defendant has sacrificed present revenues, it is necessary to establish that the defendant's prices were below marginal or average variable cost.\n \n \n 26\n Bayou Bottling, Inc. v. Dr Pepper Co., 725 F.2d 300, 305 (5th Cir.1984).5 In sum, although we follow with interest the continuing debate over theories of predation, the law in this circuit is that where barriers to entry are not pronounced predatory pricing is not established unless the defendant has set his price below his average variable cost.6\n \n IV\n \n 27\n We review then the evidence to determine if it can sustain a finding that Agency charged a price below its average variable cost. If the evidence cannot support this finding, we must next determine if there is evidence that barriers to entry existed which could render even a price above average variable cost predatory. Related particularly to this latter inquiry, we must then query whether market conditions generated a dangerous probability that defendant would succeed in attaining a market position which would enable it to control the market price. We conclude as a matter of law that plaintiffs here failed on all three counts.\n \n \n 28\n Before trial, plaintiffs filed requests for admissions under Fed.R.Civ.P. 36. The first request was: \"During the period of time that Agency charged $7.00 per day for a rental unit in San Antonio, its San Antonio rental office experienced a net loss from operations.\" The second request substituted \"Austin\" for \"San Antonio.\" The third request dealt with Agency's $8.00 price in San Antonio, and the fourth request dealt with Agency's $8.00 price in Austin. Agency admitted that all four propositions were true.\n \n \n 29\n At trial, plaintiffs relied almost exclusively on these admissions as evidence that Agency had engaged in predatory pricing. Plaintiffs did not offer any evidence respecting Agency's variable and fixed costs of operation. Rather, plaintiffs interpreted Agency's admission that it had suffered \"a net loss from operations\" to be effectively an admission of predatory pricing. This was a costly error.\n \n \n 30\n Plaintiffs fought admission of exhibits showing that Agency operations in San Antonio and Austin earned revenues greater than their costs during some of the months covered by the admissions and less than their costs during some others of these months. Plaintiffs argued that the exhibits conflicted with the admissions, but the exhibits were admitted when the trial judge concluded that the admissions related only to total costs and total revenues; when a portion of Agency's headquarters overhead was allocated to the individual offices, each showed a net loss throughout the period covered by the admissions. The defense exhibits, which made no provision for an allocation of centralized operating costs, were not inconsistent.\n \n \n 31\n Admission of these exhibits afforded Agency an opportunity to demonstrate that the price it charged for a rental car never dropped below its average variable costs. Agency's expert testified, based on these documents, that Agency's average variable costs in San Antonio and Austin during the relevant time periods fluctuated between approximately $3.65 and approximately $5.00. Thus, Agency's price was always at least 40% greater than its average variable cost. The expert also testified that Agency's average variable costs in Austin were $5.23 when Agency went to a $9.00 price there in January 1979; the price was thus 72% above average variable cost. This testimony cut to the quick of plaintiffs' predatory pricing claim, and Adjusters and Wakely urge that admission of the defense exhibits upon which defendant's expert wholly relied was reversible error.\n \n \n 32\n First, Adjusters and Wakely contend that the exhibits conflict with Agency's admissions that it operated at a net loss, but we reject this argument for the same reason as the trial judge: The admissions and the exhibits do not conflict. This is apparent when one has in mind what costs are reflected in each.\n \n \n 33\n Second, plaintiffs charge that they were never given access to the underlying documents summarized in the profit and loss statements. The trial judge found, however, that plaintiffs bore most of the blame if they were surprised by the testimony of Agency's expert, for they had turned down an opportunity to take his deposition before trial. The underlying documents were in fact made available to plaintiffs, and they would have known which ones were important to their case if they had taken the deposition of Agency's expert. Plaintiffs, however, erroneously assumed that Agency's admissions gave them all the ammunition they needed, and were surprised to discover at trial that their big gun was not loaded.\n \n \n 34\n Plaintiffs cry foul. Agency, they charge, took advantage of their misapprehension concerning the importance of the admissions. Even assuming this to be true,7 nothing in our adversary system prevents Agency from exploiting plaintiffs' error by watching silently as plaintiffs failed to carry their burden of proof. Agency was under no obligation to teach Adjusters and Wakely about the rudiments of predatory pricing or to point out the difference between a net operating loss and a price below average variable cost. Instead, this distinction was brought out at trial to rebut any impression that plaintiffs had established a prima facie case of predatory pricing.8\n \n \n 35\n Adjusters and Wakely seek now to convince us that Agency's price was below its average variable costs when it charged a $7.00 and $8.00 rental rate for its automobiles. Such evidence, however, had to be set before the jury, and the record shows that plaintiffs failed to carry their burden even of proving a prima facie case of below-cost pricing. Although plaintiffs challenged many of the assumptions shaping the opinion of Agency's expert, the record is devoid of any positive evidence that Agency's average variable cost ever exceeded its prices. Judgment n.o.v. is appropriate when \"there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question.\" Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). This record will not support a finding that Agency's price was ever inadequate to cover its average variable costs.9\n \n \n 36\n Under the American Excelsior rule, plaintiffs might still prevail if they were able to establish that the barriers to entry were sufficiently high to render even a price above average variable cost predatory. The insurance replacement car market is neither a natural monopoly nor a heavily regulated industry. Plaintiffs argue, however, that barriers existed in the form of high start-up costs and the need for contacts within the insurance industry. We find that the only conclusion permitted by the record is that the barriers to entry into this market were slight--not negligible, perhaps, but assuredly not so great as to permit a monopoly born of predatory pricing to be exploited before new competition would scotch the potential for extra-normal profits.10\n \n \n 37\n This last conclusion dooms not only plaintiffs' claim of predatory pricing, but also another necessary element of their case--the dangerous probability of success. If the market structure will not allow a dominant firm to set its price above the competitive level, the strictures of the antitrust laws are not activated. The injury to plaintiffs' business is not cognizable under the antitrust laws if competition itself is not harmed. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488-89, 97 S. Ct. 690, 697, 50 L. Ed. 2d 701 (1977); Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S. Ct. 1502, 1521, 8 L. Ed. 2d 510 (1962).\n \n \n 38\n Only Adjusters, during its first year of operations, had the luxury of being the sole firm in San Antonio specializing in insurance replacement rentals. Significantly, Adjusters' founder testified that during this period he was able neither to set a monopolist's price nor to prevent competitors from entering the market.\n \n \n 39\n On this record, the trial judge concluded that, as a matter of law, plaintiffs failed to establish that Agency engaged in anticompetitive conduct in San Antonio and Austin which created a dangerous probability that Agency would come to wield monopoly powers in those markets. We agree with this conclusion, and accordingly affirm the granting of judgment n.o.v. on these claims.\n \n V\n \n 40\n In Corpus Christi, Adjusters' complaint rests on the fact that Agency hired Adjusters' former office manager, Patty Manges, and that many of Adjusters' customers followed her to Agency. Adjusters charges that Manges was lured away from her job with that company, and that she was specifically induced to draw away Adjusters' customers.\n \n \n 41\n The case principally relied upon by both parties is Associated Radio Service Co. v. Page Airways, Inc., 624 F.2d 1342 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S. Ct. 1740, 68 L. Ed. 2d 226 (1981). Page must be read on its facts. Within a narrowly framed market, we found an antitrust violation on the basis of evidence that the defendant had induced the plaintiff's employees to act disloyally in steering business toward the defendant while they were evidently still in the employ of the plaintiff. Here there was no evidence that Manges acted inimically to Adjusters' interests until she had already left their employ for Agency.\n \n \n 42\n Page supports the view that \"the mere hiring away of employees from a rival\" is lawful. 624 F.2d at 1354. The fact that the employee then uses her own skills and contacts--and not, for example, misappropriated trade secrets--to generate business for her new employer, even at the expense of her old employer, provides no basis for antitrust liability. The record here contained nothing more, and we hold accordingly that judgment n.o.v. was properly granted to Agency on this claim.\n \n VI\n \n 43\n In sum, plaintiffs have failed to establish that any injury caused their businesses as a result of Agency's participation in the insurance replacement car rental market in San Antonio, Austin, and Corpus Christi stemmed from anticompetitive conduct comprehended by section 2 of the Sherman Act. Predatory pricing was not shown in San Antonio and Austin; anticompetitive hiring practices were not shown in Corpus Christi. Plaintiffs likewise failed to establish a dangerous probability that Agency could have come to monopolize any of these markets. As the evidence was insufficient to support a jury verdict for the plaintiffs, entry of judgment n.o.v. was appropriate.\n \n \n 44\n AFFIRMED.\n \n \n \n 1\n The damage award was broken down as follows:\n San Antonio Adjusters: $271,000\n Wakely: 88,000\nAustin Adjusters: 182,000\n Wakely: 162,000\nCorpus Christi\n Adjusters: 97,000\n \n \n 2\n The court's order reads: \"Having considered Defendant's Motion for Judgment Notwithstanding the Verdict, Plaintiffs' response thereto and the argument of counsel, as well as the evidence presented at trial hereof, the Court finds that said motion should be granted for the reasons set forth in Defendant's brief in support thereof.\"\n We have many times disapproved the use of such brief, unilluminating orders granting judgment in complex cases. Most recently, in Myers v. Gulf Oil Corp., 731 F.2d 281, 283 (5th Cir.1984), we described an order almost identical to this one as being \"pithy to the point of being incomplete,\" and we vacated a summary judgment so that the district judge could provide us with an adequate statement of reasons for his action. Such a statement by the trial court is essential to effective review. Id. at 284; Jot-Em-Down Store (JEDS) Inc. v. Cotter & Co., 651 F.2d 245, 247 (5th Cir.1981).\n Here, though practical concerns persuade us to review and decide this case, we are left guessing about the district court's reason for granting judgment n.o.v. Did the district court conclude that plaintiffs failed to prove prima facie unlawful pricing? that they failed to prove dangerous likelihood of success? that they failed to prove fact of injury, or amount of damages, or causation? Perhaps Agency prevailed on all these issues; because the district court has said only that it adopts the arguments in Agency's post-verdict brief, we are effectively forced to assume that such is the case.\n We are, of course, sympathetic to the trial court's limited resources--especially time--in the face of a heavy caseload. A lengthy opinion is not always required, and arguments may be incorporated from the parties' briefs if they are specifically recited rather than adopted en masse. In the final analysis, however, it is the trial court's exercise of judgment that we review, and in a case such as this one we must see more evidence of that judgment than a boilerplate order if we in turn are to perform our function effectively.\n \n \n 3\n In their initial appellate brief, plaintiffs argued that Agency's motion for judgment n.o.v. should not have been entertained by the trial judge because Agency allegedly did not make an adequate motion for directed verdict at the close of all the evidence as prescribed by Fed.R.Civ.P. 50(b). Agency, moved for directed verdict at the close of the plaintiffs' evidence, laying out the various grounds on which it thought it was then entitled to judgment. At the close of the defendant's case, Agency briefly reurged its motion for directed verdict, incorporating the grounds urged in its initial motion\n Since plaintiffs' original brief was filed, this court has decided two cases involving similar contentions about allegedly insufficient motions for directed verdicts. Bohrer v. Hanes Corp., 715 F.2d 213 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S. Ct. 1284, 79 L. Ed. 2d 687 (1984); Elliott v. Group Medical & Surgical Service, 714 F.2d 556 (5th Cir.1983). In both cases we rejected a rigid application of Rule 50(b), holding that if the court and counsel were adequately informed of the defendant's challenge to the sufficiency of plaintiff's evidence a motion for judgment n.o.v. could thereafter be entertained. Bohrer and Elliott control this case; the trial judge properly considered Agency's motion for judgment n.o.v.\n \n \n 4\n Although variable costs and marginal costs will differ at some points along the production possibilities curve, we note simply that, so long as marginal cost did not significantly exceed average variable cost during the relevant time, any difference is not germane to our analysis\n \n \n 5\n Sister circuits have also weighed the merits of Areeda and Turner's economic analysis of predation. Although all have accepted the basic premises of the Areeda and Turner formulation, most have expressed some reservations about supplanting entirely the intent-based test, and none have adopted a per se cost-based test. Of particular interest are the discussions in MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, --- U.S. ----, 104 S. Ct. 234, 78 L. Ed. 2d 226 (1983); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d 1014 (9th Cir.1981), cert. denied, 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61 (1982); and Northeastern Tel. Co. v. American Tel. & Tel. Co., 651 F.2d 76 (2d Cir.1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1483, 71 L. Ed. 2d 654 (1982). A helpful overview of the caselaw in this area is Vawter & Zuch, A Critical Analysis of Recent Federal Appellate Decisions on Predatory Pricing, 51 Antitrust L.J. 401 (1983). A less comprehensive discussion of the caselaw accompanies an interesting and thought-provoking synopsis of the principal alternative theories of predatory pricing advanced in the legal and economic literature in Calvani & Lynch, Predatory Pricing under the Robinson-Patman and Sherman Acts: An Introduction, 51 Antitrust L.J. 375 (1983)\n \n \n 6\n We recognize that a cost which is regarded as fixed in the short-run may become variable in the long-run, as, for example, when durable goods wear out and are either replaced or not. In most cases, however, we think it will be obvious to judges and juries which costs are appropriately viewed as fixed and which as variable over the relevant time period. When a legitimate dispute arises as to the characterization of certain costs, the question is one of fact to be resolved by the jury. See William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 F.2d at 1036-38\n \n \n 7\n The record does suggest that Agency did not share plaintiffs' misapprehension:\n THE COURT: * * * Mr. Tondre [plaintiffs' counsel] says they relied on these admissions and even after this [defense] expert was tendered, I mean, the expert negated the admissions at least insofar as certain months were concerned. He came up and said the average variable cost was exceeded by these prices.\n MR. BICKERTON [defendant's counsel]: Which was never any response--there was never any interrogatory. They have never asked us about costs, your Honor. I think that is the point in this case, and if you look at American Excelsior, it is not whether you make a profit or loss. It is the cost. Cost is the test in a predatory price increase [sic ] case.\n Agency made the same point in another exchange:\n MR. BICKERTON: We are not changing the admission.\n THE COURT: You are modifying it or explaining it, right? You are saying it ain't so.\n MR. BICKERTON: We are saying we agree that we lost money--you know, frankly, he didn't couch the question properly: Did you have a net loss? Net loss is not even a relevant issue in a predatory pricing case. Below cost or above cost, that is the issue ....\n \n \n 8\n Thus, the following exchange occurred on direct examination of Agency's expert:\n Q. Can a firm charge a price still above its average variable cost and still sustain a net loss in the period that you mentioned?\n A. Can a firm charge a price above the average variable price [sic ] and yet still maintain a net loss?\n Q. For the period?\n A. Yes.\n Q. Is it true, then, that the term \"average variable cost\" and whether you are above or below average variable cost doesn't necessarily have anything to do with whether or not you are making a net profit or loss?\n A. I would expect that if you are above average variable cost but below average total cost, you might be sustaining a loss.\n Q. Talking about different concepts?\n A. That's right.\n Earlier in the trial Agency's chairman had also revealed a businessman's instinctive grasp of this concept:\n Q. Pursuant to court procedures, pursuant to what is called a request for admissions, [Agency] has admitted that during the time Agency was charging $7.00 and $8.00 in San Antonio and Austin, it was losing money in those offices. That is the state of the record.\n A. Sir, we could be charging $50 per car when we first open and still lose money.\n \n \n 9\n Nor, given the essentially fungible character of the product and the relatively low plant investment, is it surprising that there is no suggestion that marginal cost ever exceeded average variable cost\n \n \n 10\n Sensitive to the stricture that when a judgment n.o.v. is sought the evidence must be viewed \"in the light and with all reasonable inferences most favorable to the party opposed to the motion,\" Boeing Co. v. Shipman, 411 F.2d at 374, we set out some of the exchanges at trial that underlie our conclusion. Most direct was the testimony of Agency's expert:\n Q. [D]o you have an opinion as to whether or not any company could have charged a monopoly [price] in the replacement car rental business?\n * * *\n A. In my opinion no company could have established a monopoly in San Antonio in the auto replacement rental business at that time.\n Q. Why is that?\n A. Primarily, there are no barriers to entry. Should a company be able to, even for a short period of time, exclude competition and raise their prices to an unusual profit, the market would be flooded by competitors to compete away any monopoly profits. There are so low barriers to entry into the business from what I can learn that there could be no monopoly in that industry.\n A jury question would have been presented, of course, if plaintiffs' evidence had been to the contrary. Instead, plaintiffs' expert effectively endorsed the defense expert's assessment:\n Q. Do you remember we had some discussion about replacement[?] Didn't you tell me in the deposition it was your perception that it would be easy for the daily car companies, the Hertz and Avises to get into the business whether or not they are in it at this time? You said that?\n A. I think it would be easy for me to get in it. I guess it obviously would be easy for them.\n Q. I think you also indicated it would be easy for the new car dealers to get into the business whether or not they were in it at this time?\n A. That is correct.\n Even more damaging to plaintiffs' case were the admissions made by the founder and president of Adjusters:\n Q. Essentially, all it takes to be in the replacement car business or the insurance rental business is cars and an office and a decision to be involved in that business, isn't that true?\n A. And some knowledge.\n Q. Some knowledge. Wouldn't you assume that Hertz or Avis or any existing car rental company would have at least as much about the replacement car rental business as you did when you started the business?\n A. Yes, but they would want to specialize.\n Q. So, you would agree with me, then, would you not, that there is a possible ready transition by the Hertzes and the Avises into the insurance rental business even to a larger extent than they are now?\n A. Yes.\n Q. And isn't there also another source of competition in the replacement car insurance rental business, that being the car dealers?\n A. Some car dealers.\n * * *\n Q. [I]f the new car dealer made the decision to get into the replacement car business in San Antonio, all it would take would be the decision to do it and acquiring the knowledge?\n A. It is the same as in any business.\n Q. Is there any reason to think they couldn't develop a fantastic business within a year just like you did?\n A. No.\n * * *\n Q. And we also know that regardless of how many actual competitors there are for this business, there are a whole lot of potential competitors, isn't that true[?]\n A. There is a lot of potential, yes.\n \n \n ", "ocr": false, "opinion_id": 436263 } ]

[ "113 F.3d 1251" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/113/113.F3d.1251.96-8273.html", "author_id": null, "opinion_text": "113 F.3d 1251\n Nealv.U.S.*\n NO. 96-8273\n United States Court of Appeals,Eleventh Circuit.\n Apr 23, 1997\n Appeal From: M.D.Ga. ,No.95001581CV1DF\n \n 1\n Affirmed.\n \n \n \n *\n Fed.R.App.P.34(a); 11th Cir.R. 34-4\n \n \n ", "ocr": false, "opinion_id": 740926 } ]

[ "680 F.2d 469" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/680/680.F2d.469.81-3319.html", "author_id": null, "opinion_text": "680 F.2d 469\n RUNNING SPRINGS ASSOCIATES, Plaintiff-Appellant,v.MASONITE CORPORATION, Defendant-Appellee.\n No. 81-3319.\n United States Court of Appeals,Sixth Circuit.\n Argued May 17, 1982.Decided June 17, 1982.\n \n Stanley M. Chesley, Cincinnati, Ohio, for plaintiff-appellant.\n Clement J. DeMichelis, R. Gary Winters, Cincinnati, Ohio, for defendant-appellee.\n Before EDWARDS, Chief Judge, CONTIE, Circuit Judge, and HORTON,* District Judge.\n PER CURIAM.\n \n \n 1\n This case was dismissed on motion for summary judgment by defendant in the United States District Court for the Southern District of Ohio after a number of adjournments designed to give plaintiff an opportunity to make a showing by affidavit that plaintiff-appellant, Running Springs Associates, or its representative or agent, had given the notice required by Ohio Revised Code § 1302.65(C). See also Uniform Commercial Code 2-607.\n \n \n 2\n Ohio Revised Code Section 1302.65(C) states:\n \n \n 3\n Where a tender has been accepted: (1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; ...\n \n \n 4\n In Standard Alliance Industries v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1978), cert. denied, 441 U.S. 923, 99 S. Ct. 2032, 60 L. Ed. 2d 396 (1979), this court quoted and relied upon the following language from Judge Learned Hand:\n \n \n 5\n The plaintiff replies that the buyer is not required to give notice of what the seller already knows, but this confuses two quite different things. The notice 'of the breach' required is not of the facts, which the seller presumably knows quite as well as, if not better than, the buyer, but of buyer's claim that they constitute a breach. The purpose of the notice is to advise the seller that he must meet a claim for damages, as to which, rightly or wrongly, the law requires that he shall have early warning.\n \n \n 6\n American Manufacturing Co. v. United States Shipping Board E. F. Corp., 7 F.2d 565, 566 (2d Cir. 1925).\n \n \n 7\n This court has recently dealt with similar notice problems in K & M Joint Venture v. Smith International, Inc., 669 F.2d 1106 (6th Cir. 1982). There we said:\n \n \n 8\n This court has had occasion recently to consider the adequacy of a notice of claimed breach of warranties. Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1978), cert. denied, 441 U.S. 923 (99 S. Ct. 2032, 60 L. Ed. 2d 396) (1979). Applying Ohio law in a diversity case, we reached the same conclusions concerning the notice requirement of UCC § 2-607 as the court did in Eastern Air Lines (Inc. v. McDonnell Douglas Corp., 532 F.2d 957 (5th Cir.) ), supra. Both California and Ohio adopted this section of the uniform code without change. In Black Clawson this court stated that the seller knew the buyer was experiencing difficulties with the goods and that a jury might have concluded the seller knew it was in breach of warranty to repair or replace. The critical issue, however, was whether the seller \"had notice it was considered to be in breach.\" 587 F.2d at 825. Rather than relying on the \"troublesome\" portion in Comment 4, this court emphasized the later statement in the same Comment, \"The notification which saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation.\" (Emphasis added).\n \n \n 9\n Id. at 1113.\n \n \n 10\n We have reviewed the pleadings and the affidavits in this case and conclude that the District Judge had ample basis for the entry of summary judgment. The judgment of the District Court therefore is affirmed.\n \n \n \n *\n Honorable Odell Horton, United States District Judge for the Western District of Tennessee, sitting by designation\n \n \n ", "ocr": false, "opinion_id": 405097 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv2368-48", "author_id": 1844, "opinion_text": "UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF COLUMBIA\n\nMAKHTAR YAHIA NAJI AL-WRAFIE,\n\n)\n)\n(ISN 117) )\nPetitioner, )\n)\nv. ) Civil Action No. 09-€\\/-2368 (RCL)\n)\nBARACK OBAMA, ) L E D\nPresident of the United States, )\net al. , ) F I\n) JUN ' 7 2011\nRespondents. )\n‘ & B kruptcy\n) C(§:rt‘§ thoe\\sl)t|r;c!:ici oz%olumbia\n\n RDER\n\nlt is hereby ORDERED that Resp0ndents’ Un0pposed Motion For Leave to Complete\nProduction of Additional Evidence Out of Tirne, filed in the above-captioned case on June 2,\n\n201], is GRANTED.\n\nDare: é/@/H @<C-\n\nThe\"flonorable‘/Royce C. Lamberth\nUnited States District Judge\n\n", "ocr": true, "opinion_id": 2664209 } ]

[ "252 Va. 404" ]

[ { "author_str": "Koontz", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.courts.state.va.us/opinions/opnscvwp/1952160.pdf", "author_id": null, "opinion_text": "Present: All the Justices\n\nPERSINGER & COMPANY\n OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.\nv. Record No. 952160 November 1, 1996\n\nMICHAEL D. LARROWE\n\n FROM THE CIRCUIT COURT OF ALLEGHENY COUNTY\n Duncan M. Byrd, Jr., Judge\n\n\n In this appeal we consider whether an individual can be\n\nbound by a non-competition clause of a partnership agreement to\n\nwhich he was not a signatory, although he accepted a partnership\n 1\ninterest and served as a partner for several months. Under the\n\nfacts of this case, we hold that the partnership agreement did\n\nnot bind the former partner who did not sign it.\n\n The pertinent facts are not in dispute. From 1980 to 1987,\n\nMichael D. Larrowe (Larrowe) was a staff accountant with the\n\ngeneral accounting firm of Persinger & Company (the Persinger\n\nfirm). In 1985, Larrowe was promoted to a non-equity position of\n\n\"office partner\" and signed a non-competition agreement as a\n\ncondition of this promotion. Larrowe left the firm in 1987 on\n\ngood terms and joined an accounting practice in North Carolina.\n\n In September 1990, Larrowe returned to Virginia and entered\n\ninto negotiations to resume employment with the Persinger firm.\n\nLarrowe wished to be made a general or full partner with equity\n\nin the firm. The parties agree that when Larrowe resumed\n\n 1\n This appeal was brought by the partnership in order to\ncontest two interpretations of terms in the agreement made by the\ntrial court in rendering judgment for the partnership which\nlimited the amount of the recovery. Our resolution of the\ndispositive issue, which was raised as cross-error by the former\npartner, renders these issues moot.\n\femployment with the firm as an office partner in December 1990,\n\nthere was a mutual expectation that an equity partnership offer\n\nultimately would be extended to him. In November 1991, the\n\nPersinger firm requested that Larrowe re-execute the\n\nnon-competition agreement as an office partner. Larrowe refused,\n\nand the request was not pursued.\n\n During the summer of 1992, Larrowe and the firm entered into\n\nnegotiations regarding his promotion to equity partner. During\n\nthe course of these negotiations, Larrowe was provided with a\n\ncopy of the Persinger firm's July 1, 1989 partnership agreement\n\nwhich included a non-competition provision:\n 24.1 Limitations Imposed on Former Partner.\n\n When a party to this Agreement ceases to be a\n partner, whether by reason of withdrawal or retirement,\n he will observe the following limitations. For a\n period of three (3) years immediately following the\n date he ceased to be a partner, or while he is\n receiving guaranteed payments from the partnership, he\n shall not directly or indirectly render public\n accounting services to any clients who were serviced by\n the partnership at date of his withdrawal or\n retirement. A partner violating this paragraph shall\n pay to the partnership an amount equal to one-third\n (1/3) of each year's fee as collected for a period of\n three (3) years. Such amount is due within thirty (30)\n days after it has been collected from the client by the\n former partner.\n\n\nIn addition, the agreement contains the following provision:\n\n 26.3 Changes in General Partners.\n The obligations and rights accruing to this\n partnership by virtue of this Agreement shall continue\n unabated regardless of any change in the membership of\n this general partnership; such obligations and rights\n shall be automatically assigned to the partners\n constituting the general partnership created by this\n Agreement as of any particular date; and, such\n assignments shall be effective without any further\n affirmative action on the part of the parties hereto.\n\f On September 1, 1992, Larrowe wrote a letter accepting \"the\n\nFirm's offer of a general partnership interest.\" The nature of\n\nthe Persinger firm's offer is not disclosed in the record, but it\n\nis undisputed that Larrowe did not sign the 1989 partnership\n\nagreement or any similar document at this or any subsequent time.\n\n Shortly after Larrowe became a general partner, two senior\n\nmembers of the Persinger firm began to make preparations for\n\ntheir retirement. During this period, the remaining partners,\n\nincluding Larrowe, discussed drawing a new partnership agreement\n\nto be signed after the retirements became effective. The\n\npartners were also considering reconstituting the firm as a\n\nprofessional limited liability corporation.\n Larrowe served as a general partner until January 26, 1993,\n\nwhen he submitted his resignation. Larrowe subsequently began\n\nhis own accounting practice in Galax. He solicited a number of\n\nthe Persinger firm's clients, obtaining employment from some.\n\n On August 9, 1993, the Persinger firm filed a petition for\n\ndeclaratory judgment and bill of complaint against Larrowe\n\nseeking to enforce the non-competition provision of the 1989\n\npartnership agreement and to recover fees it alleged were owed\n\nthe firm under the provisions of the agreement. Larrowe filed\n\ngrounds of defense asserting that he was not subject to the\n\npartnership agreement and its non-competition provision.\n\nFollowing an ore tenus hearing, the trial court entered judgment\n\nfor the Persinger firm. This appeal followed.\n\n There can be no doubt that upon Larrowe's acceptance of the\n\nPersinger firm's offer of a general partnership interest, a\n\fpartnership was created between the Persinger firm and Larrowe.\n\nThe threshold issue of this appeal is whether by virtue of that\n\npartnership Larrowe could be bound by the 1989 partnership\n\nagreement and its non-competition provision without being a\n\nsignatory thereto. In resolving this issue we are guided by the\n\nwell settled principles that the Persinger firm had the burden of\n\nproof and that because non-competition agreements are a restraint\n\nof trade, they will be carefully examined and strictly construed\n\nbefore they will be enforced. See Clinch Valley Physicians, Inc.\n\nv. Garcia, 243 Va. 286, 289, 414 S.E.2d 599, 601 (1992).\n\n The Persinger firm asserts on brief that the only plausible\n\ninterpretation of the facts in this case is to assume that its\n\n\"offer of general partnership in the firm was an offer for\n\nLarrowe to become a party to the [1989] Agreement.\" In support\n\nof this position, the firm contends that article 26.3 of the 1989\n\npartnership agreement \"automatically subjects new partners to the\n\nsame rights and obligations [of the 1989 partnership agreement]\n\nas other partners . . . requir[ing] no affirmative conduct for\n\nthese effects to occur.\" We disagree.\n\n The 1989 partnership agreement evinces the intent of its\n\nsignatories to conduct business as a partnership and to be bound\n\nby the included non-competition provision. It is true that in\n\nthe course of the Persinger firm's negotiations with Larrowe, he\n\nwas shown this document. Thereafter, when an equity partnership\n\noffer was extended to Larrowe and that offer was accepted by him,\n\nno reference was made to this document. Nothing in the record\n\nsupports the conclusion that this offer expressly or implicitly\n\frequired Larrowe to become a party to the 1989 agreement. To the\n\ncontrary, the Persinger firm concedes that Larrowe was never\n\nasked to sign the agreement, and the record is unequivocal that\n\nhe did not do so. 2\n\n Nor could Larrowe be bound to the agreement under the\n\nprovisions of article 26.3. For the Court to find that the\n\narticle has the effect proposed by the firm, we would be required\n\nto accept the circular reasoning that Larrowe was bound by the\n\nagreement by virtue of the agreement's requirement that partners\n\nbe bound by it. A more sensible construction of article 26.3\n\nwould be that those partners who were signatories to the\nagreement would remain bound by the agreement at the time of a\n\ndissolution or other change in the composition of the general\n\npartnership.\n\n The Persinger firm's threshold burden in this case was to\n\nestablish that Larrowe was a party to the 1989 agreement and its\n\nnon-competition clause. Until the parties have a distinct\n\nintention common to both and without doubt or difference, there\n\nis a lack of mutual assent and, therefore, no contract.\nProgressive Construction Co. v. Thumm, 209 Va. 24, 30, 161 S.E.2d\n\n687, 691 (1968). The record before us fails to show that\n\nLarrowe gave his assent to the 1989 agreement or to any express\n\nagreement other than to serve as a general partner.\n 2\n Moreover, Larrowe apparently was not shown or asked to sign\na 1991 general partnership agreement which was also produced at\ntrial, although not made an exhibit. According to the testimony\nof one of the partners, the 1991 agreement was substantially\nsimilar to the 1989 agreement, but was signed by a different\ngroup of individuals.\n\f A partnership is defined as \"an association of two or more\n\npersons to carry on as co-owners a business for profit.\" Code\n\n§ 50-6(1). The statutory language implies the voluntary joining\n\ntogether of two or more persons with the intent to form a\n\npartnership. No written document is necessary to create the\n\npartnership.\n\n Furthermore, it is permissible for existing partnerships to\n\nassociate with individuals, corporations, and other partnerships\n\nfor the purpose of forming new partnerships. See Code §§ 50-2,\n\n50-6. Thus, when Larrowe accepted the Persinger firm's offer, a\n\npartnership was formed between Larrowe and the partnership that\n\nthen constituted the Persinger firm. Whatever the nature of this\n\nnew partnership, with regard to Larrowe's rights and obligations,\n\nit was decidedly not created by nor subject to the provisions of\n\nthe 1989 partnership agreement.\n\n Stated another way, when Larrowe accepted the Persinger\n\nfirm's offer, he became an equity partner not subject to the 1989\n\npartnership agreement. Absent some written agreement\n\naffirmatively adopted by Larrowe providing otherwise, the\n\npartnership between Larrowe and the Persinger firm was governed\n\nexclusively by the Uniform Partnership Act. Code §§ 50-1 through\n\n-78. Accordingly, the Persinger firm's claims against Larrowe,\n\nfounded solely on the operation of the 1989 partnership\n\nagreement, lack merit because Larrowe was not a party to that\n\nagreement.\n\n For these reasons, we will reverse the judgment of the trial\n\ncourt and enter final judgment for Larrowe.\n\fReversed and final judgment.\n\f", "ocr": false, "opinion_id": 1060109 } ]

[ "805 P.2d 1195" ]

[ { "author_str": "Rothenberg", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6693, "opinion_text": "\n805 P.2d 1195 (1991)\nIn re the MARRIAGE OF Diana Jo LARSEN, Appellant and Cross-Appellee, and\nRay W. Larsen, Appellee and Cross-Appellant.\nNo. 89CA1465.\nColorado Court of Appeals, Div. II.\nJanuary 31, 1991.\n*1196 Frey, Lach &amp; Michaels, P.C., Susan M. Lach, Fort Collins, for appellant and cross-appellee.\nBullard, Larsen, Plock &amp; Wade, P.C., Jan A. Larsen, Fort Collins, for appellee and cross-appellant.\nOpinion by Judge ROTHENBERG.\nDiana Jo Larsen (wife) and Ray W. Larsen (husband) both appeal orders of the trial court regarding child support. We affirm in part, reverse in part, and remand for future proceedings.\nIn December 1981, the marriage between the parties was dissolved, and wife was granted sole custody of the parties' six children. Husband was ordered to pay child support of $30 per week per child until each reached the age of 18 or otherwise became emancipated. Husband was also granted all six tax exemptions for the children. In 1985, support was increased to $38 per week per child.\nIn June 1987, wife sought another increase under the child support guidelines for the five unemancipated children and also sought some or all of the tax exemptions. One child was to turn 18 during his junior year of high school, and wife argued that he would not be emancipated at 18. She further argued that emancipation occurs as a matter of law at age 21, not at 18.\nBy order entered in July 1989, the trial court granted an increase in child support and found that the following factors, taken as a whole, constituted a substantial and continuing change of circumstances: 1) Husband's income had increased moderately; 2) five children were still unemancipated and all five would reach 18 before graduating from high school; 3) the child support guidelines had since been passed by the General Assembly; and 4) the children's needs had increased. Wife was unemployed outside the home except for part-time work in conjunction with her master's degree schooling. Thus, child support was calculated based on husband's monthly gross income of $4,488, wife's investment income of $2562 per month, and additional income imputed to her of $1,000. The court applied the guidelines and ordered husband to pay $1,092 per month for the five children with support to continue until each child reached 18 unless he or she was still in high school. The court further ordered that husband could claim all five income tax exemptions for the children. Both parties appeal.\n\nI.\nWife's first contention is that the trial court erred in awarding all tax exemptions for the five unemancipated children to husband and not awarding them to her or at least dividing the exemptions between the parties. We agree.\nThe district court here apparently believed that it lacked authority to divide the tax exemptions between the parties in view of current Internal Revenue Service regulations. Also, at the time of its ruling, the court did not have the benefit of our decision in In re Marriage of Beyer, 789 P.2d 468 (Colo.App.1989).\nIn Beyer, we noted that recent changes in IRS regulations create a presumption that the custodial parent is entitled to any dependency exemptions, absent a signed written declaration on a prescribed IRS *1197 form that the custodial parent will not claim the child (or children) for tax purposes. See 26 U.S.C. § 152(e)(1) and (2) (1988). Despite the IRS's presumption, Beyer held that the district court nevertheless retains the authority to designate the parent who may claim the federal income tax exemptions. Thus, Beyer confirmed earlier rulings upholding the trial court's authority to divide tax exemptions between the parents. See In re Marriage of Nielsen, 794 P.2d 1097 (Colo.App.1990) (trial court did not err in awarding father tax exemption for both children); In re Marriage of Hauger, 679 P.2d 604 (Colo.App. 1984) (trial court did not err in awarding father one child and mother other child as tax exemption).\nIn Beyer, however, we did not face the additional issue presented here which is whether a court may effectively modify the child support guidelines by awarding all or most of the tax exemptions to one parent in a manner disproportionate to his or her contribution to child support.\nOne reason given for the passage of the child support guidelines was to \"make awards more equitable by ensuring more consistent treatment of persons in similar circumstances....\" Section 14-10-115(3)(c), C.R.S. (1987 Repl.Vol. 6B). In fact, the General Assembly prohibited the court from even departing from the statutory guidelines without making \"written or oral findings ... specifying the reasons for the deviation.\" Section 14-10-115(3)(a), C.R.S. (1987 Repl.Vol. 6B).\nThis court has also noted that \"entitlement to claim children as dependents for income tax purposes has a direct effect on the financial resources available and is intimately related to the matter of child support.\" Bradshaw v. Bradshaw, 626 P.2d 752, 755 (Colo.App.1981). For this reason, a court order regarding the dependency exemptions is subject to modification in the same manner as any other child support provision. Bradshaw v. Bradshaw, supra.\nWife contends here that the child support guidelines implicitly require the court to apportion the tax exemptions in every case in the exact proportion of the parties' gross incomes. However, we decline to interpret the guidelines to require such mathematical certainty. We recognize that, in some cases, there may be practical reasons for declining to issue orders regarding the exemptions, and therefore allowing the parties to be governed by the IRS regulations creating a statutory presumption for the custodial parent. In other cases, the trial court may have sound reasons for awarding most or even all of the tax benefits to one parent. For example, an unemployed or temporarily disabled parent may not need the exemptions or may be temporarily unable to use them.\nNevertheless, while rejecting a precise mathematical formula, we also recognize that a trial court's order which unfairly allocates the tax exemptions can seriously affect the amount of child support actually received and can indirectly and impermissibly alter the child support guidelines. See Bradshaw v. Bradshaw, supra.\nWe, therefore, hold that the trial court's authority to divide or allocate the tax exemptions between the parties is a determination within the court's sound discretion. See In re Marriage of Nielsen, supra. However, that discretion is not unfettered and, if exercised, must be appropriately used in accordance with the General Assembly's goal of ensuring consistent treatment for all parties. Thus if, as here, a trial court's order effectively modifies the statutory child support guidelines by awarding all or most of the tax exemptions to one parent, the court must make findings of fact explaining its reason for doing so. In the absence of such findings, we cannot meaningfully assess whether the court properly exercised its discretion.\nHere, since the trial court's only stated reason for awarding husband all the exemptions was its mistaken belief that it lacked authority to divide them, the order regarding the tax exemptions must be reversed and the matter must be remanded for another hearing on the issue. Further, since the trial court may not divide the tax exemptions retroactively, see In re Marriage *1198 of Hauger, supra, at the next hearing the court should also consider whether any past inequity has resulted from its previous order.\n\nII.\nWife next contends that the court erred in refusing to order child support to continue until age 21 or emancipation, whichever occurs first. We agree.\nThe age of emancipation for purposes of child support is presumed to be 21. In re Marriage of Plummer, 735 P.2d 165 (Colo.1987); Koltay v. Koltay, 667 P.2d 1374 (Colo.1983); see also In re Marriage of LeBlanc, 800 P.2d 1384 (Colo.App.1990).\nThe court here found that each child would reach 18 before graduating high school and would not be emancipated at 18. This finding was one of the circumstances upon which modification of support was based. Based on this finding and the clear state of Colorado law, the trial court erred in not ordering support for each child to continue until he or she reaches the age of 21, unless the child is emancipated earlier.\n\nIII.\nHusband asserts that the court erred by increasing child support to the amount in the guidelines. He argues that the increase in the parties' combined income was primarily the result of increases in the mother's investment income and, therefore, the evidence warranted a deviation from the guidelines. We disagree.\nUnder the child support guidelines, the increased income of either party may constitute a substantial change in circumstances. See In re Marriage of Anderson, 761 P.2d 293 (Colo.App.1988). In such a situation, the children's increased needs are presumed, § 14-10-115(3)(a), C.R.S. (1987 Repl.Vol. 6A), and husband had the burden of rebutting the showing of changed circumstances or the presumption of need by the children.\nThe evidence showed that wife's expenses for the five children had increased. Four of the children had become teenagers and two of them drove vehicles. Thus, the wife had substantially increased expenses for the purchase of automobiles and insurance. Further, one child, who was dyslexic and had an attention deficit disorder, required a private tutor in reading and math.\nIn the absence of other evidence rebutting the presumption of need, or indicating anything unusual about the father's financial circumstances, and based on the totality of the evidence here, we find no error in the trial court's refusal to deviate from the guidelines. See In re Marriage of Nielsen, supra.\n\nIV.\nThe issue of extraordinary educational expenses was not before the court, and college expenses were still speculative at the time of the hearing. Thus, we need not consider wife's argument that higher education expenses should be added to the basic child support obligation. See In re Marriage of Rosser, 767 P.2d 807 (Colo. App.1988). If appropriate, that issue may be considered upon remand.\nThose parts of the July 1989 order granting husband all tax exemptions and terminating child support at age 18 are reversed. The cause is remanded with directions to hold a new hearing concerning the tax exemptions. In all other respects, the July 1989 order is affirmed.\nSMITH and DUBOFSKY, JJ., concur.\n", "ocr": false, "opinion_id": 2603722 } ]

[ "702 F.2d 890" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/702/702.F2d.890.html", "author_id": null, "opinion_text": "702 F.2d 890\n 112 L.R.R.M. (BNA) 3410, 96 Lab.Cas. P 14,198,8 Collier Bankr.Cas.2d 413, 10 Bankr.Ct.Dec. 804,Bankr. L. Rep. P 69,144\n In the Matter of BRADA MILLER FREIGHT SYSTEM, INC., Debtor.LOCAL UNIONS 20, 26, 34, 89, 92, 124, 135, 142, 159, 279,299, 377, 406, 428, 486, 543, 571, 580, 614, 637,836, 908, Plaintiffs-Appellants,v.BRADA MILLER FREIGHT SYSTEM, INC., Defendant-Appellee.\n No. 82-7043.\n United States Court of Appeals,Eleventh Circuit.\n April 11, 1983.\n \n Goldberg, Previant, Uelmen, Gratz, Miller, Levy &amp; Brueggeman, Gerry M. Miller, Milwaukee, Wis., for plaintiffs-appellants.\n Balch, Bingham, Baker, Hawthorne, Williams &amp; Ward, John R. Carrigan, Birmingham, Ala., for defendant-appellee.\n Appeal from the United States District Court for the Northern District of Alabama.\n Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit judge.\n TUTTLE, Senior Circuit Judge:\n \n \n 1\n * A.\n \n \n 2\n The controversy before us arises out of a clash between two important national policies: the rejuvenation of the bankrupt and the regulation of labor-management relationships through the collective bargaining mechanism. The narrow focus of the present case falls on an apparent conflict between the facial language of two statutes promulgating procedures for the termination of collective bargaining agreements, Sec. 365(a) of the Bankruptcy Code, 11 U.S.C. Sec. 365(a)1, and Sec. 8(d) of the National Labor Relations Act, 29 U.S.C. Sec. 158(d).2\n \n \n 3\n On this appeal, the appellant unions challenge the district court's affirmance of the bankruptcy court's holding that collective bargaining agreements are executory contracts subject to rejection with court approval under 11 U.S.C. Sec. 365, a decision that enables a bankruptcy trustee/debtor-in-possession3 to avoid the more burdensome termination provisions of the N.L.R.A. Assuming arguendo that collective bargaining agreements are subject to the termination provisions of the Bankruptcy Code, the unions also urge: (1) that the facts of the present case do not provide adequate justification for the rejection of the agreement and, (2) that the district court and the bankruptcy court applied an incorrect legal analysis to the facts in the present case.\n \n B.\n \n 4\n Brada Miller Freight Systems, Inc. (\"the Company\"), a wholly-owned subsidiary of Brada Miller, Inc., is a special commodities carrier principally engaged in trucking in the midwestern United States. It is a signatory to the \"National Master Freight Agreement and Central States Area Iron and Steel and Special Commodity Rider\" and the \"National Master Freight Agreement and Central States Local Cartage Supplemental Agreement,\" two collective bargaining agreements negotiated between the International Brotherhood of Teamsters and an employer association to which Brada Miller belongs. These agreements were effective for the period April 1, 1979, to March 31, 1982.\n \n \n 5\n The Company was acquired by Dean Cutsinger in January 1979, and its corporate headquarters was moved from Kokomo, Indiana to Birmingham, Alabama. At the time Cutsinger acquired the Company, it was profitably operating an average of 550 motorized units a day out of 29 terminals. In 1978, the Company generated daily gross revenues of $180,000.\n \n \n 6\n Immediately after Cutsinger acquired the Company, a strike ensued which shut down Brada Miller's operations for approximately four months. The effects of the strike and a slowdown in the automobile industry, the principal market of the Company, precipitated a gradual decline in the Company's business. The Company showed a net operating loss of $188,000 for 1979, and, by the end of August 1980, the number of motorized units operated by the Company plummeted to 125.\n \n \n 7\n In the summer of 1980, the Company, in an effort to stave off impending bankruptcy, implemented a number of cost-cutting measures. Non-essential personnel were laid off, and a number of miscellaneous operating expenses were decreased or eliminated. The Company also approached its creditors and attempted to defer the amounts due under various accounts payable and loan installments.\n \n \n 8\n These actions, however, proved too little, too late. On August 1, 1980, the Company and its parent organization filed reorganization petitions under Chapter XI of Title 11 U.S.C. Secs. 1101 et seq. in the bankruptcy court for the Northern District of Alabama. Brada Miller Freight Systems, Inc., continued to operate the Company as a debtor-in-possession.4\n \n \n 9\n Simultaneously with the filing of its bankruptcy petition, the Company took two additional actions which are relevant to this appeal. First, the Company requested that the court approve the Company's rejection of its collective bargaining agreements pursuant to 11 U.S.C. Sec. 365. In an ex parte order entered on August 5, 1980, four days after the filing of the petition, the court authorized the rejection, but subsequently set its order aside on a motion by the unions pending a formal hearing on August 28.\n \n \n 10\n Second, the Company informed its terminal managers that the collective bargaining agreements with the Teamsters had been rejected, and the managers were ordered to execute independent contracts with individual drivers. Several Teamsters members chose to continue operations as independent contractors, but those members who refused were not assigned further work by the Company.\n \n \n 11\n Prior to the time of the hearing on the rejection of the contracts, various Teamsters locals filed charges with the N.L.R.B. contending that certain conduct of the Company pursuant to the rejection of the collective bargaining agreements constituted unfair labor practices. Following separate investigations, both the Detroit and Indianapolis Regional Offices of the N.L.R.B. issued complaints against the Company. These complaints were consolidated for a December 8, 1980, hearing in Indianapolis.\n \n \n 12\n In addition to the above actions, the N.L.R.B., pursuant to its power under Sec. 10(j) of the N.L.R.A., 29 U.S.C. Sec. 160(j), sought an injunction from the U.S. District Court for the Southern District of Illinois to compel the Company to cease numerous alleged unfair labor practices. On December 4, the Company, alleging that the N.L.R.B. proceedings and the federal district court action unduly interfered with the Company's continuing operations and its efforts to achieve reorganization, filed a motion in the bankruptcy court seeking a stay of all pending proceedings on the unfair labor practice charges. The bankruptcy court granted the stay following an informal hearing and set the matter down for a formal hearing on December 11.\n \n \n 13\n The bankruptcy court entered its findings on December 22, 1980. The bankruptcy court estimated that the Company's \"break-even point\", i.e. the amount of gross revenues necessary for the Company to meet its operating expenses, was $102,000 daily for 1980. The court noted that throughout August and September of 1980, the daily gross receipts from operations were consistently less than $35,000 per day.\n \n \n 14\n A large portion of the Company's costs were its obligations under the collective bargaining agreements. The bankruptcy court found that these obligations, including wages for unionized employees, health insurance payments, pension fund payments, holiday time, vacation time, funeral and sick leave, subscription to the Motor Carriers' Labor Advisory Council, and various paperwork, cost the Company approximately $32,000 per day. The Company's remaining operating expenses equaled $70,000 per day in 1980.\n \n \n 15\n The court held that the Company's attempt to reject its collective bargaining agreement was a proper exercise of the powers granted to a debtor-in-possession by 11 U.S.C. Sec. 365. The court then concluded, \"[T]here is ample evidence to support the rejection of the Union Contract which existed prior to the petition and the said rejection is approved.\" The court did not specify the precise facts on which it based this judgment or articulate the applicable legal test which might justify such a conclusion given the facts of the present case.5\n \n \n 16\n The N.L.R.B. and the affected unions appealed the bankruptcy court's order to the U.S. District Court for the Northern District of Alabama. The district court, inter alia, affirmed the bankruptcy court's judgment that collective bargaining agreements are subject to rejection under 11 U.S.C. Sec. 365(a) and concluded that substantial evidence existed to support the bankruptcy court's grant of the Company's motion to reject. The court found that a denial of the motion to reject would likely have resulted in the collapse of Brada Miller and that the equities therefore weighed in favor of rejection; the court found that this evidence satisfied the two-pronged test for rejection promulgated in Shopmen's Local Union No. 455 v. Kevin Steel Products, Inc., 519 F.2d 698 (2d Cir.1975) and Brotherhood of Railway, Airline, and Steamship Clerks v. REA Express, 523 F.2d 164 (2d Cir.1975), cert. denied 423 U.S. 1017, 1073, 96 S. Ct. 451, 855, 46 L. Ed. 2d 389, 47 L. Ed. 2d 82 (1975).6\n \n II\n A.\n \n 17\n The preliminary issue facing this Court is whether the rejection/termination of a collective bargaining agreement by a debtor-in-possession is governed by the statutory scheme of Sec. 8(d) of the N.L.R.A. or Sec. 365 of the Bankruptcy Code.\n \n \n 18\n Section 365(a) of the Bankruptcy Code provides in relevant part: \"[A bankruptcy] trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.\" This section, designed to allow the trustee or debtor-in-possession to escape burdensome obligations of the debtor and facilitate the \"fresh start\" envisioned by the Code's reorganization provisions, is, for the purposes of this appeal, identical to Sec. 313 of the Bankruptcy Act (11 U.S.C. Sec. 713) (repealed).7 Therefore, prior case law considering the relationship of Sec. 313 and the N.L.R.A. is relevant to our disposition of this case.\n \n \n 19\n Section 8(d) of the N.L.R.A. provides a detailed four-step process that a moving party must follow in order to terminate or modify a collective bargaining agreement.8 Even if this procedure is complied with, a party to a collective bargaining agreement is subject to unfair labor practice charges if it breaches the terms of the agreement prior to the agreement's expiration date.9\n \n \n 20\n The unions in the present case do not argue that a collective bargaining agreement is not an \"executory contract\" as that term is commonly defined.10 Rather, they urge that Congress, in enacting Sec. 8(d), intended to carve out collective bargaining agreements as an exception to the unilateral rejection provisions of Sec. 365. In support of this interpretation, the unions' briefs discuss extensively the history of this nation's labor laws, citing numerous instances of the Supreme Court's and the Congress' recognition of the critical role played by the collective bargaining process in the prevention of industrial strife and the smooth maintenance of U.S. commerce. However, despite the forceful arguments by counsel for the unions, we conclude that Congress intended collective bargaining agreements to be subject to unilateral rejection by the bankruptcy trustee (with the approval of the court) under Sec. 365.\n \n B.\n \n 21\n Federal appellate courts previously considering this issue11 have advanced a legal concept which largely avoids the necessity of accommodating the apparently conflicting language of Sec. 365 and Sec. 8(d). This concept, the so-called \"new entity theory,\" is based on the notion that a debtor-in-possession is not the same legal entity as the pre-bankruptcy company, but a \"new entity ... with its own rights and duties, subject to the supervision of the bankruptcy court.\" Kevin Steel, 519 F.2d at 704. Since this new entity is not a party to the collective bargaining agreement, it is not bound by the strictures of Sec. 8(d) and is free to seek rejection of collective bargaining agreements subject only to the applicable legal test for rejection under Sec. 365. These courts have likened the bankruptcy trustee to a successor employer; like a successor employer, the trustee is held only to a duty to negotiate with the collective bargaining unit and is not bound by the substantive terms of the prior agreement to which it was not a party.12\n \n \n 22\n While the new entity theory is a useful analytical tool, this Court (along with numerous commentators)13 is troubled by certain conceptual inconsistencies which compel us to seek an alternative ground for the resolution of the statutory conflict. While we recognize that the debtor-in-possession may constitute a \"new juridical entity\" for some purposes,14 we find the debtor-in-possession indistinguishable from the pre-bankruptcy corporation as far as concerns their respective obligations under the collective bargaining agreement and the labor laws that regulate the formation, existence, and termination of such agreements.\n \n \n 23\n The most obvious problem with the new entity theory is the statutory requirement that a debtor-in-possession, purportedly not a party to contracts executed by the pre-bankruptcy corporation, apply to the bankruptcy court for approval of its rejection of a collective bargaining agreement. If Congress had intended that the debtor-in-possession be in no way bound by the contracts of the pre-bankruptcy entity, the statutory scheme could simply prescribe that the filing of the bankruptcy petition constitutes a breach of all executory contracts to which the debtor is a party and grant the trustee/debtor-in-possession discretionary power merely to assume, not reject, these contracts.15\n \n \n 24\n Conversely, if a bankruptcy court refuses to allow a debtor-in-possession to reject a collective bargaining agreement, the debtor-in-possession is bound retroactively to the agreement from the time of the filing of the petition;16 yet, the proponents of the new entity concept have failed to articulate a legal theory which justifies binding a \"non-party\" to the agreement. In these circumstances, the new entity theory collides head on with the fact that a debtor-in-possession may be held accountable for breaches of the collective bargaining agreement committed in the time between the filing of the petition and the motion for rejection.17\n \n \n 25\n In short, the viability of the new entity theory is contingent on the bankruptcy court's granting of the debtor-in-possession's motion to reject the collective bargaining agreement. Its fragility is all too apparent in contrary situations where the debtor-in-possession is compelled to comply with the terms of an existing collective bargaining agreement.\n \n \n 26\n Perhaps recognizing some of the inherent faults of the new entity theory, the Second Circuit, its principal proponent, has attempted to restrict the theory's application since its promulgation in Kevin Steel and REA Express. In Matter of Unishops, Inc., 543 F.2d 1017, 1018-9 (2d Cir.1976), the court wrote:\n \n \n 27\n We again caution that the language of [Kevin Steel ] stating that \"[a] debtor-in-possession under Chapter XI ... is not the same entity as the pre-bankruptcy company\" should not be extended as a generalization in cases other than those involving labor collective bargaining agreements where the claim is that Section 8(d) of the [NLRA] ... precludes disaffirmance of the labor agreement in a Chapter XI proceeding without taking the steps required under Section 8(a) of the Labor Act; or under the Railway Labor Act ...18\n \n \n 28\n However, this constraining language does nothing to cure the problems with the theory; once it is determined that Sec. 365 is applicable to collective bargaining agreements, we see no evidence of a distinction by Congress between collective bargaining agreements and ordinary executory contracts that would support the Second Circuit's efforts to limit the theory's applications. The more the theory is forcibly restricted to a particular legal situation, the more apparent becomes its character as a \"legal fiction.\"19\n \n C.\n \n 29\n Therefore, rather than sidestep the apparent clash between the relevant statutes by the application of a legal concept that seems not wholly satisfactory, this Court finds it more beneficial to recognize the conflict in the statutory language and attempt to reconcile the statutes in a manner which best effectuates the intent of Congress.\n \n \n 30\n Our analysis begins with the wording of Sec. 365. The appellant unions have failed to present the slightest indication that Congress intended \"executory contracts\" to be interpreted in other than its everyday meaning. Though we are constantly aware of the Supreme Court's admonition that \"a thing may be within the letter of the statute and yet not within the statute, because not within its spirit or the intention of its makers,\"20 a more persuasive showing is required to justify a variation from explicit Congressional dictates than has been made in the present case; this is especially true where, as here, critical federal policies of equal magnitude weigh on each side.\n \n \n 31\n Our decision, however, does not rest merely on the facial language of the conflicting statutes. Like every federal court which has considered this issue, we are particularly persuaded by the existence of that portion of the Bankruptcy Code, 11 U.S.C. Sec. 1167,21 in which Congress specifically exempts collective bargaining agreements formed under the Railway Labor Act (45 U.S.C. Sec. 151 et seq.) from the operation of Sec. 365. As the Second Circuit noted in Kevin Steel, this action by Congress shows that \"Congress knew how to remove labor agreements from the scope of a general power to reject executory contracts.\" 618 F.2d at 704. The impact of Congress' failure to exempt other types of collective bargaining agreements is strengthened by the numerous amendments of the bankruptcy and labor statutes,22 particularly the recent overhaul of the bankruptcy laws which left untouched the narrow exemption for railway labor agreements.\n \n \n 32\n Moreover, we must reject the unions' contention that there is no rational basis on which to distinguish railway labor agreements from collective bargaining agreements in other industries. The mere existence of the Railway Labor Act demonstrates the unique status of labor relations in the railroad industry, a status frequently recognized by both Congress and the courts.23\n \n \n 33\n Furthermore, though we do not fully accept the frequently made analogy between a debtor-in-possession and a successor employer, some of the factors behind the Supreme Court's decision not to bind successor employers to the substantive terms of collective bargaining agreements created by prior management lend weight to our conclusion in this case. As the Supreme Court noted in Burns, to bind a successor employer to the substantive terms of a collective bargaining agreement negotiated by its predecessor would often interfere with the alienability of business enterprises and therefore frustrate the most efficient use of the nation's resources. 406 U.S. at 287-88, 92 S.Ct. at 1582. These same considerations apply with perhaps even greater force in the present context; if a corporation attempting to reorganize under Chapter XI is compelled to retain verbatim its pre-bankruptcy collective bargaining agreement, regardless of the degree to which the burdens imposed by the agreement contributed to the corporation's demise, it would often be impossible to induce fresh management and capital to participate in the revitalization effort of a bankrupt enterprise.\n \n \n 34\n We do not contemplate that Congress intended the ultimate fate of a corporation under Chapter XI to rest so largely in the hands of the company's protected employees. There simply exist too many other critical interests, those of other employees, creditors, and shareholders, the protection of which provides the stimulus for the bankruptcy laws, for this Court to conclude that the collective bargaining agreement was meant to hold a stranglehold position, totally immune from the flexibility provided by Sec. 365.\n \n III\n \n 35\n This is not to say, however, that the interests of employees subject to a collective bargaining agreement are not superior to the interests of other parties affected by a bankruptcy. The vital stake of this Nation in the encouragement and enforcement of these pacts between management and employees is so well-documented as not to require recitation here. But these interests find protection not in the inflexible position urged upon us by the unions in the present case, but in the test applied by the bankruptcy court in determining whether to allow the rejection of the collective bargaining agreement. It is this test to which we now turn.\n \n A.\n \n 36\n An ordinary commercial contract may be rejected by a bankruptcy trustee upon a showing that rejection would benefit the estate. 2 Collier on Bankruptcy p 365.03 (15th ed. 1981). However, this minimal burden is insufficient to protect the special rights accruing to employees under the federal labor laws.24 Therefore, courts have imposed a heavier burden on a debtor-in-possession attempting to reject a labor-management contract.\n \n \n 37\n Kevin Steel was the first federal appellate decision to struggle with articulating a test which would provide adequate protection to employees victimized by the rejection of a collective bargaining agreement while not throwing up intractable roadblocks before a bankrupt company seeking the advantages of Chapter 11 reorganization. The Second Circuit in that case adopted the proposal advanced in In Re Overseas National Airways, Inc., 238 F. Supp. 359, 361 (E.D.N.Y.1965), that a bankruptcy court should approve rejection of a collective bargaining agreement \"only after thorough scrutiny, and a careful balancing of the equities on both sides ...\" Kevin Steel, 519 F.2d at 707. The court noted that a bankruptcy court must \"move cautiously\" in granting a motion to reject a collective bargaining agreement given the important labor interests involved. Id.\n \n \n 38\n In REA Express, decided only a few months after Kevin Steel, a panel of the Second Circuit considered an appeal from a district court order granting a motion of the employer to reject a collective bargaining agreement negotiated under the Railway Labor Act. Though purporting to apply the balancing test proposed in Kevin Steel, the REA Express court tacked on the additional requirement that a bankruptcy court could allow the rejection of a collective bargaining agreement only if it \"concludes that an onerous and burdensome executory collective bargaining agreement will thwart efforts to save a failing [company] in bankruptcy from collapse ...\" REA Express, 523 F.2d at 169. In other words, regardless of the outcome of a court's consideration of the interests of employees, unionized and non-unionized, creditors, and shareholders, a collective bargaining agreement could be rejected only if the financial obligations imposed by the agreement were determined to be the difference between successful reorganization and forced liquidation.\n \n \n 39\n The discrepancy between these two tests went unrecognized until N.L.R.B. v. Bildisco, 682 F.2d 72 (3d Cir.1982), cert. granted, --- U.S. ----, 103 S. Ct. 784, 74 L.Ed.2d ---- (1983). Until this time most courts apparently accepted the REA Express test as merely a fuller articulation of the somewhat loosely-worded standard of Kevin Steel. Thus, most courts have required a debtor-in-possession to make a threshold showing that successful reorganization is contingent on rejection of the challenged collective bargaining agreement.25\n \n \n 40\n In Bildisco, the Third Circuit noted the inconsistent language of the Kevin Steel and REA Express opinions and explicitly rejected the additional showing required by REA Express. 682 F.2d at 79. The Bildisco court explained:\n \n \n 41\n [The REA standard], in our view, goes well beyond the \"balancing of equities\" required by Kevin Steel. We reject this more stringent test for two discrete but related reasons: first, for the pragmatic reason that it may be impossible to predict the success vel non of a reorganization until very late in the arrangement proceedings; and second, for the prudential consideration that the imposition of such a test unduly exalts the perpetuation of the collective bargaining agreement over the more pragmatic consideration of whether the employees will continue to have jobs at all.\n \n \n 42\n 682 F.2d at 80.\n \n \n 43\n We agree with the Bildisco court, particularly with regard to its latter conclusion that the test of REA Express imposes an excessive burden on the debtor-in-possession, one that subordinates the myriad of diverse interests at stake to a single issue: the ability of the debtor-in-possession to show by a preponderance of the evidence that forced liquidation is a certainty absent a rejection of the collective bargaining agreement. We find, as did the Bildisco court, that the Kevin Steel balancing of the equities test provides a more satisfactory accommodation of the conflicting interests at stake in a rejection proceeding.\n \n \n 44\n The probability of a forced liquidation is only one factor (though an important one) in a court's consideration of a motion to reject; the failure of a debtor-in-possession to carry the burden suggested by REA Express should not be so firmly dispositive of the various interests at stake in a reorganization proceeding. To elevate this single consideration to such a dominant and decisive position allows the issue of rejection to be settled without any consideration of the interests of other parties involved, a total abdication of the policies behind the bankruptcy laws.26\n \n B.\n \n 45\n Obviously each Chapter XI proceeding presents a unique set of circumstances. Hence, no hard-and-fast test may be applied in every case. There are, however, a number of factors which we think might properly be considered by a bankruptcy court addressing a motion to reject; while we do not pretend that the factors discussed below are necessarily exhaustive, we believe that these factors, if adequately considered, will strike an appropriate balance among the important policies at stake.\n \n \n 46\n First, of course, is the possibility of liquidation, both with and without the rejection,27 and the impact of liquidation on each of the parties involved. We do not envision a particularized consideration of the effect of liquidation on individual employees, creditors, and shareholders, but rather a weighing of the impact on these groups in the aggregate.28 In calculating the probability of liquidation after the rejection of a collective bargaining agreement, the bankruptcy court should bear in mind that a debtor-in-possession, even after rejection, is compelled to bargain with an established bargaining unit in an attempt to execute a new collective bargaining agreement;29 therefore, the impact of a potential strike on the debtor need also enter into the court's calculus.30\n \n \n 47\n Second, (and closely related to the first), a court should consider the claims that will result from the rejection of a collective bargaining agreement, both in terms of the adequacy of relief for the employees and other claimants, and the impact of these claims on the debtor. This factor is especially important since many of the benefits received by employees under collective bargaining agreements are non-monetary and generally incapable of providing a basis for a damage award.31 In considering both this factor and the previous one, a court may find it appropriate to treat employees covered by the collective bargaining agreement and non-covered employees as distinct groups, paying particular attention to the proportion of covered employees in the entire workforce of the bankrupt company.32\n \n \n 48\n Third, the cost-spreading abilities of the parties must be considered in a resolution based on the equities. Certainly, a $50,000 loss to a group of employees averaging $20,000 a year in salary may have a far more devastating impact than a $100,000 loss suffered by a group of large banks and other major creditors or by the debtor-employer itself. The consideration of this factor seems especially appropriate since it was the discrepancy in economic power between labor and management that provided the impetus behind the establishment of the labor law policies we now seek to preserve.33\n \n \n 49\n Finally, the good (or bad) faith of the unions and the debtor in seeking to resolve their mutual dilemma might be examined by the bankruptcy court. For example, did the employer seek concessions from the unions prior to its attempt to reject the contract? If so, how cooperative was the union? The tone of past negotiations between the parties is also relevant in evaluating their behavior. We stop short of requiring that the parties commence the bargaining process prior to the granting of a motion to reject,34 but we leave it to the discretion of the bankruptcy court to require such bargaining after considering the likelihood of success, the potential length of the negotiations, and the impact of delay on the debtor-employer.35\n \n \n 50\n In conclusion, we must address the fears expressed by the appellant unions in the present case that employers will enter Chapter XI and utilize the Section 365 mechanism for the sole purpose of escaping a union contract. It has long been held that such an abuse of the bankruptcy and labor laws will not be tolerated under any circumstances.36 Therefore, regardless of the outcome of the balancing of the equities, a bankruptcy court must make an \"explicit showing in the record that the debtors were not improperly motivated by a desire to rid themselves of the union\" prior to allowing the rejection of a collective bargaining agreement. In Re Figure Flattery, Inc., 88 Lab.Cas. (CCH) p 11,850 at 23,502 (S.D.N.Y.1980); Kevin Steel, 519 F.2d at 707.\n \n \n 51\n In sum,\n \n \n 52\n [T]he polestar is to do equity between claims which arise under the labor contract and other claims against the debtor; ... in this, the court must consider the rights of covered employees as supported by the national labor policy as well as the possible \"sacrifices which other creditors are making\" in the effort to bring about a successful reorganization, (citation omitted); and ... the court must make a reasoned determination that rejection of the labor contract will assist the debtor-in-possession or the trustee to achieve a satisfactory reorganization. We believe that particularly in a time of economic uncertainty and distress an analysis following this pattern provides more protection to both employer and employee than the test urged upon us by the union....\n \n \n 53\n Bildisco, 682 F.2d at 81.\n \n \n 54\n The judgment of the district court at No. 81-C-0432-S is VACATED and the case REMANDED to it with the direction of a further remand to the bankruptcy judge for reconsideration in light of the foregoing and in light of the disposition by the Supreme Court of Bildisco.37\n \n \n \n 1\n Section 365(a) provides in relevant part:\n \"[A] bankruptcy trustee ... subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.\"\n \n \n 2\n Section 8(d) of the NLRA provides in relevant part:\n (d) ... where there is in effect a collective bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification--\n (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification;\n (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;\n (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to meditate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and\n (4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later.\n The remainder of Section 8(d) together with Section 8(a)(5) of the N.L.R.A. (29 U.S.C. Sec. 158(a)(5)) provide that the failure of an employer to comply with the above conditions will constitute an unfair labor practice.\n \n \n 3\n Subject only to certain limitations not relevant to this case, a debtor-in-possession has all the rights and powers and is compelled to perform all the duties and functions as a bankruptcy trustee appointed under Chapter XI. (11 U.S.C. Sec. 1107(a)). These powers include the right to operate the debtor's business, 11 U.S.C. Sec. 1108, and the right to reject or assume executory contracts (11 U.S.C. Sec. 365). In the present case, Brada Miller Freight Systems, Inc., continued to operate the company as a debtor-in-possession following the filing of the bankruptcy petition\n \n \n 4\n See note 3, supra. Since the distinction between the pre-bankruptcy Company and the debtor-in-possession is a somewhat slippery concept on which this Court does not choose to rely (see discussion infra ), we will continue for simplicity to refer to the debtor-in-possession as \"the Company.\"\n \n \n 5\n The bankruptcy court also decided that (1) it has powers coextensive with the N.L.R.B. to adjudicate unfair labor practices and that the Company was guilty of an unfair labor practice; (2) it is empowered to enjoin the administrative processes of the N.L.R.B.; and (3) it is empowered to enjoin, and accordingly enjoined, the Company's employees from interfering with the Company's business\n \n \n 6\n The district court reversed the remainder of the bankruptcy court's decision. The district court held that: (1) the bankruptcy court does not have concurrent jurisdiction with the N.L.R.B. to adjudicate and remedy unfair labor practices; (2) the bankruptcy court exceeded its authority and violated the anti-injunction provisions of the Norris-LaGuardia Act (29 U.S.C. Secs. 101, 104) by enjoining concerted employee activity arising out of the dispute between Brada Miller and its employees; and (3) the bankruptcy court failed to apply the proper legal test when it stayed the N.L.R.B. proceedings without finding that the proceedings threatened the Company's assets\n Brada Miller does not challenge these portions of the district court order on this appeal.\n \n \n 7\n Section 313 provided in relevant part:\n Upon the filing of a petition, the court may ...\n (1) permit the rejection of executory contracts of the debtor upon notice to the parties to such contracts and to such other parties in interest as the court may designate ...\n \n \n 8\n See note 2, supra\n \n \n 9\n Id\n \n \n 10\n Black's Law Dictionary (5th ed. 1979) defines \"Executory Contract\" as \"A contract that has not as yet been fully completed or performed. A contract the obligation (performance) of which relates to the future.\"\n \n \n 11\n Kevin Steel; REA Express; Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 613 F.2d 210 (9th Cir.1980); N.L.R.B. v. Bildisco, 682 F.2d 72 (3d Cir.1982), cert. granted, --- U.S. ----, 103 S. Ct. 784, 74 L.Ed.2d ---- (1983)\n \n \n 12\n For discussion of successor employers' obligations, see N.L.R.B. v. Burns International Security Services, 406 U.S. 272, 287-88, 92 S. Ct. 1571, 1582, 32 L. Ed. 2d 61 (1973)\n \n \n 13\n Countryman, Executory Contracts in Bankruptcy: Part II, 58 Minn.L.Rev. 479, 489 n. 215 (1974); Note, The Labor-Bankruptcy Conflict: Rejection of a Debtor's Collective Bargaining Agreement, 80 Mich.L.Rev. 134, 137-42 (1981); Note, The Bankruptcy Laws Effect on Collective Bargaining Agreements, 81 Colum.L.Rev. 391, 404 (1981); Note, Bankruptcy Law-Labor Law-Rejection of Collective Bargaining Agreements as Executory Contracts in Bankruptcy, 22 Wayne L.Rev. 165 (1974)\n \n \n 14\n One obvious example is the broad powers granted to a debtor-in-possession under the bankruptcy laws\n \n \n 15\n A statutory plan of this nature would differ in a critical manner from 11 U.S.C. Sec. 365(g) which provides that \"the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or release ... immediately before the date of the filing of the petition.\" (Emphasis added). Under this statutory scheme, the breach resulting from the rejection is imputed to the pre-bankruptcy debtor, but the actual step that precipitates the breach must be taken by the trustee/debtor-in-possession with the permission of the court\n \n \n 16\n Though the law in this area is somewhat unsettled, this result appears compelled as a matter of federal labor policy. If a debtor-in-possession is unable to meet the test for the rejection of a collective bargaining agreement (see discussion infra ), it would clearly be inequitable to allow the debtor-in-possession to violate with impunity the substantive terms of the agreement in the time period between the filing of the bankruptcy petition and the motion to acquire approval of the rejection. This is especially true since the length of the period between these two events is controlled by the debtor-in-possession who has the burden of moving for assumption or rejection of the contract before the bankruptcy court\n \n \n 17\n See note 16, supra\n \n \n 18\n The Unishop court's statement that it \"again\" cautions against broad application of the new entity theory apparently refers to the court's opinion in Truck Drivers Local Union No. 807 v. Bohack Corp., 541 F.2d 312 (2d Cir.1976). There, the court concluded:\n Of course, the statement that the debtor is not a \"party,\" and the analogy to the successor employer, cannot be taken literally since neither affirmance or rejection of the collective bargaining agreement would be possible by one not a party to it. See, Countryman, Executory Contracts in Bankruptcy: Part II, 56 Minn.L.Rev. 479, 489 n. 259 (1974).\n Id. at 320.\n \n \n 19\n Note, Bankruptcy and the Rejection of Collective Bargaining Agreements, 51 Notre Dame Law. 819, 829 (1976)\n \n \n 20\n Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S. Ct. 511, 512, 36 L. Ed. 226 (1891)\n \n \n 21\n Section 1167 provides in relevant part:\n Notwithstanding section 365 of this Title, neither the court nor the trustee may change the wages or working conditions of employees of the debtor established by a collective bargaining agreement that is subject to the Railway Labor Act (45 U.S.C. 151 et seq.) except in accordance with section 6 of such Act (45 U.S.C. 156).\n This section of the new Bankruptcy Code is substantially similar to section 77(n) of the Bankruptcy Act (11 U.S.C. Sec. 205(n) (repealed)) which provided:\n No judge or trustee acting under this Title shall change the wages or working conditions of railroad employees except in the manner proscribed in sections 151 to 163 of Title 45 ...\n \n \n 22\n E.g., amending the National Labor Relations Act: the Taft-Hartley Act, June 23, 1947, ch. 120, 61 Stat. 136; the Landrum-Griffin Act, Sept. 14, 1959, Pub.L. No. 86-257, 73 Stat. 519; amending the Bankruptcy Act: Act of July 1, 1946, ch. 532, 60 Stat. 409; Act of Sept. 25, 1962, Pub.L. No. 87-681, 76 Stat. 570; Acts of Nov. 28, 1967, Pub.L. No. 90-156, 90-157, 90-158, 81 Stat. 510, 511, 516; Act of Oct. 19, 1970, Pub.L. No. 91-467, 84 Stat. 990\n \n \n 23\n For example, a House Report issued in conjunction with 11 U.S.C. Sec. 1167 wrote, \"The subject of railway labor is too delicate and has too long a history for this Code to upset established relationships. [Section 1167] continues this balance unchanged.\" H.R.Rep. No. 95-595, 95th Cong., 1st Sess., p. 423 (1977), U.S.Code Cong. &amp; Admin.News 1978, p. 5787, 6379. See also, International Association of Machinists v. Central Airlines, Inc., 372 U.S. 682, 687-89, 83 S. Ct. 956, 959-61, 10 L. Ed. 2d 67 (1963)\n \n \n 24\n Kevin Steel, 519 F.2d at 707 (\"The decision to allow rejection should not be based solely on whether it will improve the financial status of the debtor. Such a narrow approach totally ignores the policies of the Labor Act and makes no attempt to accommodate to them.\"). The Kevin Steel court also recognized that employees require special protection since many of the benefits accruing to them under collective bargaining agreements are \"incapable of forming the basis of a provable claim for money damages.\" Id., quoting In Re Overseas National Airlines, 238 F. Supp. 359, 361 (E.D.N.Y.1965). Therefore, the cause of action for a breach of contract provided to non-debtor parties to a rejected contract under 11 U.S.C. Sec. 365(g) will seldom compensate employees fully for their losses when a collective bargaining agreement is rejected\n \n \n 25\n See, e.g., In Re Alan Wood Steel Co., 449 F. Supp. 165, 169 (E.D.Pa.1978); In Re Miles Machinery, No. 81-00388 (Bankr.E.D.Mich. June 17, 1982), Slip op. 4-5; In Re Connecticut Celery Co., 106 L.R.R.M. (BNA) 2847, 2851-53 (Bankr.D.Conn.1980); In Re Studio Eight Lighting, Inc., 91 L.R.R.M. (BNA) 2429, 2430 (E.D.N.Y.1976)\n \n \n 26\n We do not mean to suggest that the possibility of liquidation may not constitute the most critical element of a bankruptcy court's decision to grant or deny a motion to reject a collective bargaining agreement; in many instances, the threat of liquidation with its incumbent loss of jobs and default on debts will properly constitute the principal factor in a judge's decision to allow rejection. We mean only to stress that this factor alone should not be decisive absent some consideration of the other interests involved\n \n \n 27\n Though we recognize that consideration of this factor imposes a burden of prescience on a bankruptcy court similar to that decried in Bildisco, we do not find this burden to be overly onerous under our proposed test where the possibility of liquidation is only one of a number of factors to be considered and is not necessarily dispositive of a particular case\n The bankruptcy court must keep in mind that many of the costs incumbent on the employer under the collective bargaining agreement will continue to be borne by the post-bankruptcy company. Therefore, in calculating the burden imposed on the debtor by a collective bargaining agreement, the court must estimate the surplus of costs under the collective bargaining agreement over the expenses that must continue to be met in the operation of the Chapter XI company.\n \n \n 28\n A comparison of wage and benefit levels of similarly-situated employees in other companies may be appropriate in this determination\n \n \n 29\n Bildisco, 682 F.2d at 80; Kevin Steel, 519 F.2d at 704\n \n \n 30\n Bildisco, 682 F.2d at 80\n \n \n 31\n See note 24, supra. These types of intangible, non-compensable benefits may include pension rights, welfare rights, seniority rights, scope of work, union shop checkoff and discharges, disciplinary grievance/arbitration procedures, meal periods, jury duty, and uniforms. Note, 81 Colum.L.Rev. at 396 n. 52\n \n \n 32\n Note, 81 Colum.L.Rev. at 401-403\n \n \n 33\n As the Supreme Court noted in NLRB v. Jones &amp; Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937):\n [The NLRA] goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.\n That is a fundamental right. Employees have as clear a right to organize and select their own representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority. Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and his family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer.\n 301 U.S. at 33, 57 S. Ct. at 622.\n \n \n 34\n This proposal was advanced in In Re Price Chopper Supermarkets, 19 B.R. 462, 466 (Bkrtcy.S.D.Cal.1982) and in Note, 80 Mich.L.Rev. at 149-52\n \n \n 35\n Some confusion exists as to the proper role in a bankruptcy court's decision of the profitability of other companies operating under the same collective bargaining agreement. We do not find this factor particularly relevant since it focuses on the pre-bankruptcy business decisions of the debtor's management which, if made in good faith, are largely beyond the scope of judicial review under the business judgment rule. Though the competence of the debtor's management may be relevant in determining the ultimate structure of the reorganized company, an assessment of blame for the company's downfall will not contribute in a constructive manner to a balancing of the equities\n \n \n 36\n In Re Mamie Conti Gowns, 12 F. Supp. 478 (S.D.N.Y.1935); International Brotherhood of Teamsters v. Quick Charge, 168 F.2d 513, 515-6 (10th Cir.1943)\n \n \n 37\n Since the Supreme Court has granted certiorari in Bildisco, the trial court will, of course, be guided by the Court's decision in that case\n Though our articulation of the applicable legal test compels a remand since we are unable to conclude that the bankruptcy court would necessarily reach the same result, Pullman Standard v. Swint, 456 U.S. ----, 102 S. Ct. 1781, 1791-2, 72 L. Ed. 2d 66 (1982), we feel compelled to comment that the bankruptcy court's disposition of this case was inadequate regardless of the applicable standard. The court failed even to articulate the test on which it relied for the particular facts which supported its ultimate conclusion. The important interests of unionized employees in the continuity of a collective bargaining agreement may not be sacrificed in such a cursory manner.\n \n \n ", "ocr": false, "opinion_id": 415579 } ]

[ "738 F.2d 378" ]

[ { "author_str": "Cook", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/738/738.F2d.378.83-1423.html", "author_id": null, "opinion_text": "738 F.2d 378\n UNITED STATES of America, Plaintiff-Appellee,v.Lorenzo Lawrence Jose DE LA LUZ GALLEGOS, Defendant-Appellant.\n No. 83-1423.\n United States Court of Appeals,Tenth Circuit.\n July 2, 1984.\n \n 1\n Charles Dickinson Burg, Denver, Colo., for defendant-appellant.\n \n \n 2\n Presiliano Torrez, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty. and Stanley K. Kotovsky, Jr., Asst. U.S. Atty., Albuquerque, N.M., on brief), for plaintiff-appellee.\n \n \n 3\n Before McWILLIAMS and LOGAN, Circuit Judges, and COOK*, District Judge.\n \n \n 4\n H. DALE COOK, District Judge.\n \n \n 5\n Defendant Lorenzo Lawrence Jose De La Luz Gallegos was convicted after trial to a jury of possession of an unregistered firearm, in violation of 26 U.S.C. Sec. 5861(d) and possession of a firearm bearing no serial number, in violation of 26 U.S.C. Sec. 5861(i). Defendant was sentenced as a youthful offender pursuant to the provisions of 18 U.S.C. Sec. 5010(b) on March 18, 1983. The assertions raised by the defendant on appeal are that (1) the trial court erred in denying defendant's motion to suppress statements made to a government agent, and (2) the trial court erred in denying defendant's motion for a mistrial based upon defendant's assertion that trial counsel for the government presented during opening statement information which penalized the defendant for invocation of his Sixth Amendment right to counsel. We affirm the convictions.\n \n \n 6\n The evidence at trial showed the following: On July 5, 1982, the defendant and his brother were observed near a gas well on the Jicarilla-Apache Indian Reservation by a tribal police officer. The officer detained defendant and his brother on suspicion of stealing drip gas. At some point after the detention defendant and his brother ran from the officer, got into a red or maroon pickup truck and drove away. The officer fired a shot from his weapon in the air and pursued the vehicle. Some time during the chase the officer saw a flash from the passenger side of the vehicle and he heard the report of a gunshot. The officer called for assistance. The defendant and his brother were captured by authorities at a roadblock about two and one-half hours later. The red or maroon pickup was searched and a shotgun, which ultimately led to the instant charges, was found in the pickup truck. Shotgun shells, including one spent shell, were also recovered from the truck.\n \n \n 7\n On the next day, the defendant was approached by an agent of the Bureau of Indian Affairs for the purpose of an interview. In that the defendant spoke only limited English, a Tribal Judge for the Jicarilla-Apache Tribe was contacted to act as an interpreter/translater for the interview. Defendant was versed in the Spanish language. Present at the time were defendant, the BIA agent, the Tribal Judge and defendant's mother. The Tribal Judge translated the Miranda1 rights from English into Spanish. The defendant indicated that he understood his rights and made a request for an attorney. The Tribal Judge then conversed with defendant's mother about health problems of the defendant. This occurred after the reading of the Miranda rights to the defendant. At this meeting the defendant made some statements that tended to show that he was in possession of the shotgun involved herein prior to arrest at the roadblock and tended to negate his defense that he was not aware that the shotgun was in the red or maroon pickup truck at the time of his arrest.\n \n \n 8\n The trial court, after a motion to suppress hearing, found that the statements made by the defendant at the aforementioned meeting were volunteered by the defendant and not the result of any questioning by the BIA agent or any other government official. The only statement that the trial court found was a result of questioning was deemed inadmissible. This concerned a question by the BIA agent to defendant as to whether he had seen or knew the tribal police officer who made the initial stop on the reservation near the gas well.\n \n \n 9\n In essence the trial court found that the incriminating statements made by defendant, whether made before or after his request for an attorney, were not the result of any governmental interrogation or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); United States v. Carpenter, 611 F.2d 113 (5th Cir.1980), cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980); United States v. Guido, 704 F.2d 675 (2nd Cir.1983).\n \n \n 10\n In this case, the defendant appears to argue both that the actual advisement of Miranda rights, themselves, and the conversation between the Tribal Judge and defendant's mother, after he had invoked his right to counsel, were the functional equivalent of interrogation.\n \n \n 11\n The starting point for our inquiry begins with Miranda v. Arizona, supra. There, the United States Supreme Court held that law enforcement officers must give certain warnings to defendants before being allowed to interrogate them in a custodial setting. Here there is no doubt that the defendant was in custody within the meaning of Miranda. The problem arises in the present situation, except as to the one statement held inadmissible by the trial court, as to whether or not the incriminating statements made by defendant were the result of any law enforcement interrogation. They were not and the trial court was warranted in so finding.\n \n \n 12\n Here, the BIA agent and the Tribal Judge were involved with a defendant whose knowledge of English was limited. During the Miranda warnings the defendant began to interject comments. In that the defendant made a request for an attorney no questioning of him followed. At one point, while defendant was volunteering statements, the BIA agent reminded him that because he had requested an attorney he should not say anything, but the defendant disregarded this advice and continued to interject comments during the conversation between the Tribal Judge and his mother about his health.\n \n \n 13\n There were no accusatory statements or questions posed by law enforcement officials. Only spontaneous, unprovoked statements were involved. The admission of these statements does not violate the principles enunciated in Miranda because no interrogation was involved. Though the defendant's version of the meeting differs with that of the BIA agent and the Tribal Judge, the trial court rejected defendant's version that questions were asked of him or that government officials engaged in any subtle form of interrogation. There is no indication that the law enforcement officials made any statements in the presence of defendant that they should have known were likely to elicit an incriminating response. Innis, supra 446 U.S. at 302-303, 100 S.Ct. at 1690-1691. In the context of the meeting at hand, the BIA agent had no reason to believe that advising defendant of his Miranda rights would elicit an incriminating response or that defendant would ignore the warning of the agent not to say anything after he had requested an attorney. The interrogation element of Miranda is simply not present here as the trial court so found. The statements made were volunteered, unprovoked and spontaneous. They were not foreseeable by the BIA agent, nor were they the product of any subtle form of interrogation.\n \n \n 14\n Furthermore, no violation of defendant's Fifth Amendment right to remain silent or, ancillary thereto, his Sixth Amendment right to counsel occurred here. Once a criminal suspect has asserted his right to counsel, all interrogation must cease until an attorney has been furnished to consult with him. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), reh. denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). Edwards, however, does not prohibit the introduction of every statement made by a defendant after invocation of the right to counsel and before an attorney is afforded. The holding in Edwards simply prohibits the introduction of statements made by a defendant after invocation of his right to counsel which are in response to law enforcement initiated interrogation or its functional equivalent. As can be seen from the previous discussion no such interrogation was involved here. Simply because a suspect has requested an attorney is not itself sufficient to prohibit the use of spontaneous declarations not brought about by the prompting of law enforcement officials. The BIA agent here scrupulously honored defendant's request for an attorney. He reminded defendant of his request and advised that no comments should be made. The defendant ignored this advice and there is no valid reason on this record to overturn the ruling of the trial court.\n \n \n 15\n The defendant's reliance on Edwards, supra, and Oregon v. Bradshaw, --- U.S. ----, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) is misplaced. There was no reinterrogation after defendant had once requested counsel here or any interrogation at all as we have previously pointed out. The question whether defendant knowingly and intelligently waived his right to counsel is, thus, not involved here. As it was said in Edwards, \"[a]bsent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver.\" Id. 452 U.S. at 485, 101 S.Ct. at 1885, relying on Rhode Island v. Innis, supra, 446 U.S. at 298, n. 2, 100 S.Ct. at 1688, n. 2.\n \n \n 16\n Defendant's second assignment of error is that the trial court erred in denying his motion for a mistrial. The motion was based on statements made by trial counsel for the government during his opening statement to the effect that during the meeting discussed above the defendant requested an attorney. The defendant contends that these comments by the prosecutor penalized him for invoking his Sixth Amendment right to counsel. We disagree.\n \n \n 17\n A relevant purpose for admitting testimony that a defendant was advised of his rights under Miranda is to lay a proper foundation for the admission of any statements made by a defendant thereafter. United States v. Wycoff, 545 F.2d 679 (9th Cir.1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). This is so because it is the jury which must ultimately make the determination as to whether or not any subsequent statements made by a defendant were voluntary and what weight to give to such statements in their deliberations. United States v. Two Bulls, 577 F.2d 63 (8th Cir.1978), cert. denied 439 U.S. 931, 99 S.Ct. 322, 58 L.Ed.2d 326 (1978).\n \n \n 18\n The trial court in this case instructed the jury that it should determine if any statements made by defendant were knowingly and voluntarily made by him and that the jury should give any statement such weight as it believed it deserved under all of the circumstances. [Tr.Vol.III, pp. 130-131].\n \n \n 19\n It is well established that in a situation where a defendant makes no statement to law enforcement officials after the giving of the Miranda rights, evidence that a defendant has invoked his right to remain silent or requested an attorney is not admissible evidence at trial. See Wycoff, supra at 681-682; United States v. King, 485 F.2d 353, 360 (10th Cir.1973); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Two Bulls, supra at 66. The reason for this is that a defendant should not be penalized for exercising his constitutional rights and a jury should not be allowed to draw an inference of guilt from such exercise. However, in certain atypical situations such evidence is properly admissible. Two Bulls at 66.\n \n \n 20\n Here the government argues that the comments made during opening statement by the prosecuting attorney were to demonstrate the circumstances in which defendant made the incriminating statements in the presence of the BIA agent. It contends the comments were made to lay a foundation to demonstrate the voluntariness of these statements. No objection was made to the prosecutor's comment during opening statement. [Tr.Vol.III, pp. 13-14]. The issue was first brought up by the trial court outside the presence of the jury. [Tr.Vol.III, pp. 55-56]. No testimony concerning post-arrest silence or a request for an attorney was brought up before the jury again until the defendant responded to a question asked by the prosecuting attorney concerning what he had said to the BIA agent and the Tribal Judge.2 The defendant responded to the prosecutor's question that he had said he wanted an attorney. [Tr.Vol.III, pp. 104].\n \n \n 21\n This case is similar to Two Bulls, supra. In that case the defendant, Ronald Steven Two Bulls, was convicted of fourth degree burglary in violation of the Indian Crimes Act of 1976, 18 U.S.C. Sec. 1153. An investigator with the BIA, two FBI agents and two other BIA investigators went to Two Bulls' residence to investigate the burglary. Two Bulls was advised of his Miranda rights by the FBI agents. Two Bulls refused to make any statement and the FBI agents left. The BIA investigators remained and engaged in small talk. About twenty minutes later Two Bulls volunteered an incriminating statement about his involvement in the burglary.\n \n \n 22\n At trial, prior to introduction of the incriminating statement, an FBI agent testified that Miranda warnings had been given to Two Bulls and that he declined to make any statement. The trial court denied Two Bulls' objection to the admission of this testimony and subsequently denied a mistrial motion. In Two Bulls, as here, the defendant made a pretrial motion to keep the inculpatory statement(s) out of evidence as being involuntary. The Eighth Circuit in Two Bulls stated:\n \n \n 23\n Under 18 U.S.C. Sec. 3501(a) (1976), after the judge determines that an admission was made voluntarily, the jury may hear evidence on the question of voluntariness to enable it to determine what weight should be given the admission. Thus, the issue of voluntariness continued throughout the trial. Because the knowing exercise of the privilege to remain silent may refute an inference that a later statement was involuntary, the trial court did not err in admitting ... testimony concerning Two Bulls' temporary silence following the Miranda warnings.\n \n \n 24\n Of course here, the defendant does not challenge the use of testimony at trial on any request made by defendant for an attorney, but only the opening statement of the prosecutor in that regard. We are of the belief that in this atypical situation comment on the defendant's temporary post-Miranda silence or his request for an attorney was not grounds for a mistrial. The knowing exercise of defendant's right to consult with an attorney before answering questions may refute the inference that any later statement made was involuntary.\n \n \n 25\n In any event, from a thorough review of the record herein we are convinced that, even if the comment was improper in some way, any error was harmless beyond a reasonable doubt. United States v. King, supra at 360; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). The comments were made at the very beginning of the trial in opening statement. The matter was not mentioned again before the jury until the defendant brought it up himself. The evidence against defendant was substantial, if not overwhelming. The comments were not made by the government in closing argument and they were not fresh in the minds of the jurors as in United States v. Arnold, 425 F.2d 204 (10th Cir.1970) and United States v. Nolan, 416 F.2d 588 (10th Cir.1969) cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187 (1969).\n \n \n 26\n The convictions of defendant are AFFIRMED.\n \n \n \n *\n Honorable H. Dale Cook, Chief United States District Judge for the Northern District of Oklahoma, sitting by designation\n \n \n 1\n Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)\n \n \n 2\n At one point during direct examination of the Tribal Judge by the prosecutor the following unsolicited statement was made by the Tribal Judge: \"Mr. Kie [the BIA agent] had to bring it to the attention of Mr. Gallegos that he had taken the right.\" The prosecutor quickly shut off any inquiry into that area and no objection was made to the unsolicited statement\n \n \n ", "ocr": false, "opinion_id": 437757 } ]

[ "704 F.2d 1155" ]

[ { "author_str": "Goodwin", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/704/704.F2d.1155.82-1579.html", "author_id": null, "opinion_text": "704 F.2d 1155\n UNITED STATES of America, Plaintiff-Appellee,v.Melvin Garth ISMOND, Defendant-Appellant.\n No. 82-1579.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted March 8, 1983.Decided April 28, 1983.\n \n William Glueck, Asst. U.S. Atty., Seattle, Wash., for plaintiff, appellee.\n Michael Martin, Asst. Federal Public Defender, Seattle, Wash., for defendant, appellant.\n Appeal from the United States District Court for the Western District of Washington.\n Before GOODWIN, ALARCON and FERGUSON, Circuit Judges.\n GOODWIN, Circuit Judge:\n \n \n 1\n Melvin Ismond appeals the district court's order denying his motion for modification of sentence filed pursuant to Fed.R.Crim.P. 35. The only issue on appeal is whether the district court failed to exercise its discretion by mechanically imposing a two-year sentence for violating 8 U.S.C. Sec. 1326. (Unlawful entry after having been deported.)\n \n \n 2\n Ismond resided in Vancouver, British Columbia. He had a drinking problem and a history of arrests and convictions related to his drinking problem. On July 21, 1982, Ismond stopped at a local tavern in Canada. One beer led to another, and soon he was drunk. He hailed a taxi and went to Sumas, Washington, the main street of which is adjacent to the United States-Canadian border.\n \n \n 3\n Ismond continued drinking at taverns in Sumas until he was refused service. While waiting for a taxi to take him home, Ismond came to the attention of the Sumas police. The police officers reported to their dispatcher that they intended to put Ismond in a taxi and to instruct the driver to return him to British Columbia. A border patrol agent listening to the police radio recognized Ismond's name and remembered him as having been deported in 1973. The agent placed an immigration hold on Ismond.\n \n \n 4\n To dispose of the case, without trial, the parties entered into a plea agreement. Ismond pled guilty to one count of illegally reentering the United States after deportation. In return, the government recommended that Ismond be deported on unsupervised probation provided he not return to the United States without official approval for five years.\n \n At sentencing, the district judge stated:\n \n 5\n \"The Court is not in agreement with the recommended disposition of the government in this case. I'm very troubled by the fact that this is another in a pattern of entries into the United States. Frequently in the past there have been crimes committed when the defendant came into the United States, and he is going to have to get the message that he simply cannot come into this country and commit crimes and expect to be just sent back to Canada.1\n \n \n 6\n \"It is not going to work that way, and to the extent I have anything to say about it, every time he is caught in the Western District of Washington and comes before me, he's going to do two years' time.\"In United States v. Lopez-Gonzales, 688 F.2d 1275, 1276 (9th Cir.1982), we held that a district court has the duty to exercise its discretion when imposing a sentence. When it is clear that the judge did not exercise discretion, but has applied an arbitrary formula, we have held that kind of a sentence to be inconsistent with the judge's duty as explained in Dorszinski v. United States, 418 U.S. 424, 443, 94 S. Ct. 3042, 3052, 41 L. Ed. 2d 855 (1974).\n \n \n 7\n In Lopez-Gonzales the district court sentenced the defendant to the two-year maximum for illegally transporting aliens after announcing that the court intended to impose the maximum sentence in every similar case. We held that:\n \n \n 8\n \"Because the district judge stated that he automatically imposes the maximum sentence whenever an illegal alien is apprehended after flight and pursuit, we remand for sentencing in light of Lopez-Gonzales' individual circumstances.\" United States v. Lopez-Gonzales, 688 F.2d at 1277.\n \n \n 9\n Lopez-Gonzales requires consideration of the individual defendant's circumstances. In the case at bar the court considered Ismond's individual circumstances. Lopez-Gonzales forbids the district court from mechanically imposing two-year sentences on all illegally reentering deportees, not from imposing two-year sentences every time a particular deportee illegally reenters the country. The argument about mechanistic sentencing is largely a matter of epithets, shedding little light on what happens in individual cases.\n \n \n 10\n The peculiar circumstances of this case are many. Ismond is one of life's unfortunates, frequently living on welfare or incarcerated either in Canada or in the United States. He lives near the border yet has not been caught within the United States for nine years. But for an intercepted radio call, his offense, which began innocently enough, would have ended with a taxi ride back to Canada. Instead, Ismond has become a burden upon the American taxpayer for two years. He is currently in the Medical Center for Federal Prisoners at Springfield, Missouri. One may question whether his incarceration serves either the goals of general deterrence or specific deterrence. We do not commend this sentence as a model of prudent sentencing. But Congress has not given this court the general authority to overrule the sentencing decision of the trial court when the record reveals that the court actually exercised its discretion, even though the court may have exercised its discretion in a manner that does not commend itself to a panel of appellate judges. Dorszynski v. United States, 418 U.S. at 440, 441, 94 S. Ct. at 3051.\n \n \n 11\n Affirmed.\n \n \n \n 1\n The parties did not include Ismond's pre-sentence report in the record, but Ismond's attorneys state in his motion for reconsideration of the sentence:\n \"The defendant was last deported from the United States in 1973. Since then he has remained in Canada. Admittedly, a good portion of that time was spent in custody in Canada. Since his last release in Canada in January, 1980, the defendant has been living on welfare in the Vancouver, British Columbia area. There are no indications that the defendant has been involved in any illegal activity during the past two years.\"\n \n \n ", "ocr": false, "opinion_id": 416742 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 22, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv0311-54", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\n\n ALSENY BEN BANGOURA,\n\n Plaintiff,\n\n v. Civil Action No. 05-0311\n DAR\n UNITED STATES DEPARTMENT OF\n THE ARMY,\n\n Defendant.\n\n\n\n\n MEMORANDUM OPINION\n\n In this action, Alseny Ben Bangoura1 (“Plaintiff”), pursuant to the Freedom of\n\nInformation Act (“FOIA”), 5 U.S.C. § 552, challenges the responses of the United States\n\nDepartment of the Army (“Defendant”) to his FOIA requests. Pending for determination by the\n\nundersigned United States Magistrate Judge are Defendant’s Motion to Dismiss or in the\n\nAlternative for Summary Judgment (Document No. 23) and Plaintiff’s Motion for Summary\n\nJudgment (Document No. 41).\n\n By an order entered on March 31, 2009 upon consideration of the motions; the\n\nmemoranda in support thereof and in opposition thereto, and the entire record herein,\n\n\n 1\n The record in this case contained varying spellings of Plaintiff’s first name. Compare Complaint for\nDeclaratory and Injunctive Relief (“Complaint”) (Document No. 1) at 1, with id. ¶ 1, and Amended Complaint for\nDeclaratory and Injunctive Relief (“Amended Complaint”) (Document No. 22) at 1, and Plaintiff Alseny Ben\nBangoura’s Motion for Summary Judgment (“Plaintiff’s Motion”) (Document No. 41) at 1. The undersigned\nidentified Plaintiff herein using the spelling contained in the caption of the Second Amended Complaint. See Second\nAmended Complaint for Declaratory and Injunctive Relief (“Second Amended Complaint”) (Document No. 37) at 1.\n\fBangoura v. United States Department of the Army 2\n\nDefendant’s motion to dismiss or in the alternative for summary judgment was granted and\n\nPlaintiff’s motion for summary judgment was denied. The findings of fact and conclusions of\n\nlaw in support of said order follow.\n\n\nI. BACKGROUND\n\n Plaintiff filed the instant action seeking an order, pursuant to the FOIA, for the\n\n“production of any and all materials and information within the possession of the Military Police\n\nUnit of the Military District of Washington (“Military Police Unit”), regarding [Plaintiff’s] arrest\n\nand detention . . . on October 28, 2004 at . . . the State Department Federal Credit Union in . . .\n\nWashington, D.C.” Second Amended Complaint ¶¶ 1-2, 5. Plaintiff sought documents that\n\nincluded “witness interviews at the credit union and any base banning orders issued by the Police\n\nunit.” Id. ¶ 2. In his Second Amended Complaint, Plaintiff alleged that on November 15, 2004,\n\nhis attorney sent a FOIA request “to the Military Police Unit of the Military District of\n\nWashington seeking the release of any and all materials and information within the possession of\n\nthe Military Police regarding [his] arrest[.]” Id. ¶ 41. Plaintiff further alleged that he did not\n\nreceive any materials in response to his November 15 request, and that, he sent a second FOIA\n\nrequest on December 13, 2004. Id. ¶¶ 41- 42. On August 18, 2005, more than six months after\n\nPlaintiff initiated this litigation, the United States Army Crime Records Center (“USARC”)\n\nproduced a five-page “report” with redactions pertaining to Plaintiff’s detention. See id. ¶ 51.\n\nPlaintiff alleged that on September 15, 2005, “a third information request was submitted to the\n\nUSARC seeking records of the call to the Military Police made by the bank manager, copies of\n\nthe allegedly fraudulent checks and information regarding the arrest of Mr. John[,] [Plaintiff’s\n\fBangoura v. United States Department of the Army 3\n\nlandlord][.]” Id. ¶ 54. On October 18, 2005, Plaintiff received copies of the alleged fraudulent\n\nchecks, but did not receive any documents with respect to “Mr. John’s arrest or Mr. John’s\n\npresence as a witness to [Plaintiff’s] alleged arrest and detention at the State Department Federal\n\nCredit Union.” Id. ¶ 57. Plaintiff alleged that on February 15, 2006, during a status conference,\n\nhe received a three-page document “consisting of the notes of [Plaintiff’s] interrogation” from\n\n“[a] representative of the Department of Justice[.]” Id. ¶ 62. Plaintiff further alleged that on\n\nMarch 14, 2006, he sent “another letter requesting further documentation from the USARC[.]”\n\nId. ¶ 64. Plaintiff alleged that USARC located and produced the “‘Daily Staff Journal or Duty\n\nOfficers Log’ and a CID [(“Criminal Investigation Command”)] ‘Agent’s Activity Summary.’”\n\nId. ¶¶ 65 - 66.\n\n As relief, Plaintiff, in his second amended complaint requested the court to “[d]eclare that\n\nthe Military Provost’s refusal to respond to the records within the mandatory statutory period is\n\nan unlawful violation of FOIA[]” (id. ¶ 78); “[d]eclare that the Defendant failed to adequately\n\narticulate a basis for the FOIA exemptions asserted by not complying with Vaughn v[.] Rosen[]”\n\n(id. ¶ 79); “[d]eclare that the Defendant’s assertions of exemptions claimed under b(2), b(6),\n\nb(7)(c) and the Privacy Act exemption 55(a)(j)(2) in the redacted documents provided to\n\n[Plaintiff] was unfounded[]” (id. ¶ 80); “[d]eclare that the Defendant violated FOIA failing to\n\nconduct an adequate search for documents requested by [Plaintiff][]” (id. ¶ 81), and “[d]irect\n\nDefendant to make all requested records available to [Plaintiff] unredacted without any further\n\ndelay and to explain the absence of certain documents and records that should have been\n\nprepared under applicable regulations and procedures.” Id. ¶ 82.\n\fBangoura v. United States Department of the Army 4\n\nII. CONTENTIONS OF THE PARTIES\n\n Defendant moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to\n\ndismiss the instant action for failure to state a claim upon which relief can be granted or,\n\nalternatively, pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment,\n\nasserting that “good faith search efforts were employed to locate any records about [P]laintiff and\n\nthe investigation conducted on October 28, 2004 . . . and that 15 pages of responsive documents\n\nwere released[]” with redactions which are “justified under FOIA exemptions [5 U.S.C. § 552]\n\n(b)(2), (b)(6), and (b)(7)(C).” Defendant’s Memorandum of Points and Authorities in Support of\n\nDefendant’s Motion to Dismiss or for Summary Judgment (“Defendant’s Memorandum”)\n\n(Document No. 23-2) at 25; see also id. at 13-24. In support of its motion, Defendant also\n\nasserted that there is no cause of action created by an agency’s failure to timely respond to a\n\nFOIA request (see id. at 10-11), and that the obligation for an agency to provide a Vaughn Index\n\narises only upon the filing of a summary judgment motion.2 Id. at 11-12.\n\n Plaintiff opposed Defendant’s motion and cross-moved for summary judgment.3 Plaintiff\n\n 2\n Defendant also moved to dismiss Plaintiff’s claims against the individual defendants. See id. at 9-10; see\nalso Amended Complaint ¶¶ 6-8. However, on October 24, 2006, the undersigned granted Plaintiff’s Motion for\nLeave to File a Second Amended Complaint (see October 24, 2006 Minute Order), in which Plaintiff did not allege\nany claims against individual government officials. See Second Amended Complaint ¶ 6. Thus, the undersigned\nfinds Defendant’s motion to dismiss Plaintiff’s claims against the individuals named as defendants is moot.\n\n 3\n Plaintiff, on July 17, 2006, initially opposed Defendant’s motion with his own cross motion for partial\nsummary judgment. See Plaintiff’s Cross M otion for Partial Summary Judgment (Document No. 25). In it, Plaintiff\nmoved for partial summary judgment with respect to Count One–Defendant’s alleged “fail[ure] to respond to\n[Plaintiff’s] FOIA request in the requisite statutory time period[,]”–and Count Two Defendant’s alleged “fail[ure] to\nprovide a Vaughn index as instructed by the precedent in this court.” Id. ¶¶ 1, 5. Additionally, on the same date,\nPlaintiff moved to “stay [consideration of Defendant’s] Summary Judgment [motion] . . . with regard to Count Four\nof the Second Amended Complaint [sic] pending [l]eave to [s]eek [d]iscovery.” See Plaintiff’s Motion to Stay\nSummary Judgment Under 56(f) Pending Leave to Seek Discovery (“Plaintiff’s 56(f) motion”) (Document No. 26) at\n1.\n The undersigned granted Plaintiff’s motion to stay summary judgment consideration and permitted Plaintiff\nto take limited discovery on the adequacy of Defendant’s search. See December 8, 2006 Memorandum Opinion and\nOrder (Document No. 38). At the conclusion of the limited discovery period, the undersigned permitted Plaintiff to\n\fBangoura v. United States Department of the Army 5\n\ncontended Defendant’s failed to: (1) respond to [Plaintiff’s] “initial FOIA request during the\n\nmandatory 20 day statutory time period for FOIA requests[]” (Plaintiff’s Memorandum of Points\n\nand Authorities in Support of Plaintiff’s Cross Motion for Summary Judgment (“Plaintiff’s\n\nMemorandum”) (Document No. 41-3) at 4); (2) provide a Vaughn index or equivalent to\n\n“identify the abundant and ambiguous redactions in a systematic manner[]” (id. at 6); (3) provide\n\na “sufficient basis to assert any exemptions” for the responsive information withheld pursuant to\n\n5 U.S.C. § 552(b)(2), (b)(6), and (b)(7)(C) (see id. at 7-13); (4) conduct an adequate search\n\n“‘reasonably calculated’ to produce relevant documents[]” (see id. at 16-23); and (5) to act in\n\ngood faith with respect to its searches and the production of documents. See id. at 24-27.\n\n In the opposition to Plaintiff’s motion for summary judgment, and the reply to Plaintiff’s\n\nopposition, Defendant maintained that (1) Plaintiff’s Second Amended Complaint should be\n\ndismissed for Plaintiff’s failure to send his FOIA request to the proper address in accordance\n\nwith Army regulations (see Defendant’s Opposition to Plaintiff’s Cross-Motion for Summary\n\nJudgment and Reply in Support of Defendant’s Motion to Dismiss and for Summary Judgment\n\n(“Defendant’s Response”) (Document Nos. 42, 43) at 8-9); (2) there is no basis for declaratory\n\nrelief for an agency’s failure to timely respond to a FOIA request, and that in any event, “Plaintiff\n\nhas received the relief to which he is entitled–[“proceed[ing] to court to seek an order compelling\n\nthe agency to produce the requested records[]” (id. at 10)]–for such a violation[]” (id. at 11); (3)\n\nit used a “coded index to satisfy the requirements of the Vaughn Index[,]” in the McGuire\n\n\nfile another cross motion for summary judgment and to supplement his opposition to Defendant’s motion. See\nFebruary 7, 2007 Minute Entry. Plaintiff again moved for summary judgment (see Plaintiff Alseny Ben Bangoura’s\nMotion for Summary Judgment (“Plaintiff’s Motion”) (Document No. 41)) and incorporated his previous arguments\nwith respect to Counts One and Two. Consequently, the undersigned denied Plaintiff’s initial cross motion for\npartial summary judgment as moot. See March 18, 2009 Minute Order.\n\fBangoura v. United States Department of the Army 6\n\ndeclaration and that the declaration explained the FOIA exemptions invoked in a manner that\n\nwas “clear, specific and unambiguous[]” (id. at 12)4; (4) it properly invoked the applicable FOIA\n\nexemptions to withhold special agent sequence numbers, names of individuals and other\n\npersonally identifying information (see id. at 13-18); and (5) it “conducted a reasonable and\n\nadequate search for responsive records by employing methods reasonably expected to produce\n\nsuch information as evidenced by . . . declarations . . . and the deposition testimony [in the\n\nrecord][.]” Id. at 21.\n\n Plaintiff, in his reply, asserted that he was entitled to declaratory relief based on\n\nDefendant’s “well-established pattern of delayed and ineffectual responses to Plaintiff’s FOIA\n\nrequests.” Defendant’s Reply Brief in Support of Plaintiff’s Cross Motion for Summary\n\nJudgment (“Plaintiff’s Reply”) (Document No. 44) at 4-5. Plaintiff also asserted that\n\nDefendant’s reliance on the McGuire Declaration as a Vaughn index or its equivalent was\n\nmisplaced. See Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s Cross\n\nMotion for Partial Summary Judgment and Motion for Leave to Seek Discovery5 (“Plaintiff’s\n\nPartial Summary Judgment Memorandum”) (Document No. 30) at 12 (“The statement, ‘all other\n\nredactions . . . were of individual names and/or identifying information justified by Exemptions\n\nb(6) and b(7)[(C)]’ leaves [Plaintiff] guessing as to the applicable exemption.”). Moreover,\n\nPlaintiff submitted that Defendant’s invocation of FOIA exemptions 2, 6, and 7(C) “unjustly\n\nrestrict[ed]” his access to information relevant to his request, did not sufficiently\n\n\n 4\n Defendant supported its redactions with a declaration prepared by Philip J. McGuire, the Director of the\nUnited States Army Crime Record Center (USACRC) U.S. Army Criminal Investigation Division and supervisor of\nthe Freedom of Information and Privacy Act Division at USACRC. McGuire Declaration ¶ 3.\n\n 5\n See n.3, supra.\n\fBangoura v. United States Department of the Army 7\n\n“demonstrate . . . a clear[] unwarranted risk to privacy[,]” and inadequately balanced the\n\n“public’s interest in disclosure . . . [and] applicable privacy interests to . . . relevant\n\ninformation[.]” Plaintiff’s Reply at 6. Plaintiff further submitted that Defendant “is not entitled\n\nto assert exemptions under FOIA because Defendant continues to act in bad faith in responding\n\nto Plaintiff’s request.” Id. Plaintiff contended that Defendant’s search efforts were “inadequate,\n\nunreasonable, and misleading[]” (id. at 9), given Defendant’s failure to “follow leads to uncover\n\nresponsive documents” that were identified in the materials produced to Plaintiff. Id. at 9-13.\n\n\nIII. STANDARD OF REVIEW\n\n A. Motion to Dismiss\n\n Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a pleading\n\nfor “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).\n\n“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint.” Hammond v.\n\nD.C. Record Ctr., 593 F. Supp. 2d 244, 247 (D.D.C. 2009) (citing Browning v. Clinton, 292 F.3d\n\n235, 242 (D.C. Cir. 2002)). “In evaluating a Rule 12(b)(6) motion to dismiss . . . the court must\n\nconstrue the complaint in a light most favorable to the plaintiff and must accept as true all\n\nreasonable factual inferences drawn from well-pleaded factual allegations.” Citizens for\n\nResponsibility & Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 210 (D.D.C. 2009)\n\n(citing In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915\n\n(D.D.C. 1994)). When, on a Rule 12(b)(6) motion, “matters outside the pleading are presented to\n\nand not excluded by the court, the motion must be treated as one for summary judgment under\n\nRule 56. All parties shall be given reasonable opportunity to present all the material that is\n\fBangoura v. United States Department of the Army 8\n\npertinent to the motion.” Fed.R.Civ.P. 12(d); see Williams v. Dodaro, 576 F. Supp. 2d 72, 80\n\n(D.D.C. 2008).\n\n\n B. Motion for Summary Judgment\n\n Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if\n\nthe pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to\n\nany material fact and that the moving party is entitled to judgment as a matter of law.\n\nFed.R.Civ.P. 56(c). Material facts are those that “might affect the outcome of the suit under the\n\ngoverning law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking\n\nsummary judgment bears the initial burden of demonstrating an absence of genuine issue of\n\nmaterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635,\n\n638 (D.C. Cir. 1994). In considering whether there is a triable issue of fact, the court must draw\n\nall reasonable inferences in favor of the non-moving party. Id.\n\n In addition, Local Civil Rule 7(h) provides:\n\n Each motion for summary judgment shall be accompanied by a statement\n of material facts as to which the moving party contends there is no genuine\n issue, which shall include references to the parts of the record relied on to\n support the statement. An opposition to such a motion shall be\n accompanied by a separate concise statement of genuine issues setting\n forth all material facts as to which it is contended there exists a genuine\n issue necessary to be litigated, which shall include references to the parts\n of the record relied on to support the statement . . . In determining a\n motion for summary judgment, the court may assume that facts\n identified by the moving party in its statement of material facts are\n admitted, unless such a fact is controverted in the statement of\n genuine issues filed in opposition to the motion.\n\nLCvR 7(h) (emphasis supplied); see also LCvR 56.1.\n\n The District of Columbia Circuit has held that “[i]f the party opposing the motion fails to\n\ncomply with this local rule, then ‘the district court is under no obligation to sift through the\n\fBangoura v. United States Department of the Army 9\n\nrecord’ and should ‘[i]nstead . . . deem as admitted the moving party’s facts that are\n\nuncontrovertedby the nonmoving party’s Rule [LCvR 7(h)] statement.’” Securities and Exch.\n\nComm’n v. Banner Fund Int’l, 211 F. 3d 602, 616 (D.C. Cir. 2000) (citation omitted). The\n\nDistrict of Columbia Circuit “[has] explained . . . that the ‘the procedure contemplated by the\n\n[local] rule. . . isolates the facts that the parties assert are material, distinguishes disputed from\n\nundisputed facts, and identifies the pertinent parts of the record.’” Burke v. Gould, 286 F. 3d\n\n513, 517 (D.D.C. 2002) (quoting Gardels v. CIA, 637 F. 2d 770, 773 (D.C. Cir. 1980)). This\n\ncircuit has affirmed the grant of summary judgment where the nonmoving party failed to cite any\n\nevidence in the record, and in the statement of genuine factual issues, “did not set forth specific,\n\nmaterial facts, but simply asserted, without citing evidence in the record, that there was a\n\ndisputed issue[.]” Burke, 286 F. 3d at 518 (quoting Tarpley v. Greene, 684 F. 2d 1, 7 (D.C. Cir.\n\n1982)).\n\n\n\n C. Freedom of Information Act (“FOIA”)\n\n “FOIA provides a ‘statutory right of public access to documents and records’ held by\n\nfederal government agencies.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t\n\nof Justice, No. CIV.A.05-2078, 2009 WL 649699, at *1 (D.D.C. Mar. 16, 2009) (quoting Pratt v.\n\nWebster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with\n\nrequests to make their records available to the public, unless such “information is exempted\n\nunder [one of nine] clearly delineated statutory language.” Id. (internal quotation marks\n\nomitted); see also 5 U.S.C. § 552(a), (b). A district court has jurisdiction to enjoin the agency\n\nfrom withholding records and to order the production of any records improperly withheld from\n\fBangoura v. United States Department of the Army 10\n\nthe requester and to review de novo the withholding of information pursuant to an exemption.\n\nSee 5 U.S.C. § 552(a)(4)(B). The agency has the burden to show that “each disputed withholding\n\nor redaction [is] proper[.]” Judicial Watch of Florida v. U.S. Dep’t of Justice, 102 F. Supp. 2d 6,\n\n10 (D.D.C. 2000); see also 5 U.S.C. § 552(a)(4)(B) (citations omitted). “In a FOIA case, a court\n\nmay award summary judgment solely on the basis of information provided by the agency in\n\n[affidavits or] declarations when the [affidavits or] declarations describe ‘the documents and the\n\njustifications for nondisclosure with reasonably specific detail, demonstrate that the information\n\nwithheld logically falls within the claimed exemption, and are not controverted by either contrary\n\nevidence in the record nor by evidence of agency bad faith.’” Moore v. Bush, No. CIV.A.07-107,\n\n2009 WL 504623, at *3 (D.D.C. Feb. 23, 2009) (quoting Military Audit Project v. Casey, 656\n\nF.2d 724, 738 (D.C. Cir. 1981)). “Once a court determines that the affidavits [or declarations]\n\nare sufficient, no further inquiry into their veracity is required.” Judicial Watch Inc. v. Export-\n\nImport-Bank, 108 F. Supp. 2d 19, 25 (D.D.C. 2000). However, a motion for summary judgment\n\nshould be granted in favor of the FOIA requester “[w]hen an agency seeks to protect material\n\nwhich, even on the agency’s version of the facts falls outside the proffered exemption[.]”\n\nColdiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info.\n\nCorp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).\n\n\nIV. DISCUSSION\n\n Defendant justifiably withheld exempted information\n\n On November 15, 20046 and on several occasions thereafter, Plaintiff sought the\n\n\n 6\n In Count One of his Second Amended Complaint, Plaintiff sought a declaratory judgment that Defendant\nfailed to respond to his November 15, 2004 FOIA request “to [the] Military Police Unit of the Military District of\n\fBangoura v. United States Department of the Army 11\n\n“production of any and all materials and information within the possession of the Military Police\n\nUnit of the Military District of Washington (“Military Police Unit”), regarding [Plaintiff’s] arrest\n\nand detention . . . on October 28, 2004 at . . . the State Department Federal Credit Union in . . .\n\nWashington, D.C.[.]” Second Amended Complaint ¶¶ 1-2, 5. Plaintiff also sought documents\n\nthat include “witness interviews at the credit union and any base banning orders issued by the\n\nPolice unit.” Id. ¶ 2. In response to Plaintiff’s November 15, 2004 FOIA request and his\n\nsubsequent inquires, Defendant located and produced fifteen pages of documents “regarding\n\n[P]laintiff and the incident of October 28, 2004[,]” (Defendant’s Response at 8) which\n\nencompassed a “five-page final investigation report”; “two checks that [P]laintiff had been\n\nattempting to cash at the time of his arrest”; “three pages of handwritten special agent’s notes\n\n\n\nW ashington” within the statutory period of twenty days. See Second Amended Complaint ¶ 74, 78; see also\nPlaintiff’s Partial Summary Judgment Memorandum at 8 (“Plaintiff requests declaratory relief in the form of an order\nstating that Defendant failed to respond, reply or even acknowledge the FOIA request until over six months after the\ninitial FOIA request and six months after [Plaintiff] filed suit.”). Defendant opposed Plaintiff’s request, and moved\nto dismiss Count One contending that Plaintiff has received the remedy–to petition the court for release of the\nrequested documents–for its failure to timely respond to Plaintiff’s request. Defendant’s Memorandum at 11.\nDefendant argued that “[s]ince [P]laintiff has filed suit to enforce his FOIA request . . . there is no possible relief\navailable . . . on Count 1.” Id.\n\n The undersigned finds that the FOIA does not create a cause of action for an agency’s untimely response to\na FOIA request. The statute clearly provides a requester a remedy for an agency’s non-compliance with its time limit\nprovisions: a direct avenue to the district courts to “enjoin the agency from withholding agency records and to order\nthe production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B); see also Edmonds Institute v.\nDep’t of Interior, 383 F. Supp. 2d 105, 111 (D.D.C. 2005) (“[P]urpose of the FOIA deadline provisions is to allow a\nFOIA requester, who has not yet received a response from the agency, to seek a court order compelling the release of\nthe requested documents, at which point the court may then order the agency to respond to the request or review the\nrequest itself[.]’”) (internal quotations marks and citation omitted). Moreover, Plaintiff’s reliance on Swan View\nCoalition v. Dep’t of Agric., 39 F. Supp. 2d 42, 46 (D.D.C. 1999) is entirely misplaced. In Swan View, the court\nheld that declaratory relief, in the context of FOIA requests, is limited to instances where a “defendant voluntarily\nceases to engage in . . . allegedly illegal conduct” during the course of litigation, where a plaintiff challenges an\n“allegedly illegal agency policy and the future implication of that policy” or ‘there exists some cognizable danger of\nrecurrent violation.’” Swan View, 39 F. Supp. 2d at 46 (citations omitted). The facts of this action–Defendant’s\nresponse to Plaintiff’s initial FOIA request– without more, does not present a “cognizable danger of recurrent\nviolation” or “an illegal agency policy.” See also Public Employees for Environmental Responsibility v. U.S. Dep’t\nof Interior, No. CIV.A.06-182, 2006 W L 3422484, at *9 (D.D.C. Nov. 28, 2006). Thus, Defendant’s motion to\ndismiss Count One of the second amended complaint is granted.\n\fBangoura v. United States Department of the Army 12\n\nregarding [Plaintiff] and his alleged offenses”; “CID ‘Agent’s Activity Summary’ for October 28\n\nand 29[,]” and “a ‘Daily Staff Journal or Duty Officer’s Log . . . detail[ing] the activities of the\n\nmilitary police office on October 28, 2004.” Defendant’s Memorandum at 2-4. Defendant\n\nmaintained that a reasonable and adequate search has been performed and that “all reasonably\n\nsegregable, non-exempt information has been released.” Defendant’s Response at 12, n.11.\n\nDefendant contended that it properly withheld portions of these documents pursuant to 5 U.S.C.\n\n§ 552(b)(2), (6), and (7)(C).7 See Defendant’s Memorandum at 13-24. Thus, the issue before\n\nthe court is whether, as a matter of law, Defendant is entitled to rely on the stated FOIA\n\nexemptions.8\n\n\n 7\n Defendant produced, without redactions, copies of the two checks Plaintiff allegedly attempted to cash on\nOctober 28, 2004.\n\n 8\n In Count Two of his Second Amended Complaint, Plaintiff sought a declaratory judgment that Defendant\n“failed to adequately articulate with particularity a basis for the FOIA exemptions asserted[]” and that “[a] [Vaughn]\nindex . . . was not provided[.]” Second Amended Complaint ¶ 75, 79; see also Plaintiff’s Memorandum at 6 (“At no\npoint before or after [the] filing of this action, and even after the limited Discovery period, did Defendant provide a\nVaughn index or suitable equivalent identifying the basis for its privilege claims.”). As an initial matter, Defendant\nwas under no obligation to provide Plaintiff with a Vaughn Index before the “filing of this action[.]” See Vaughn v.\nRosen, 484 F.2d 820, 826 (D.C.Cir. 1973); see also Schwarz v. U.S. Dep’t of Treasury, 131 F.Supp. 2d 142, 147\n(D.D.C. 2000) (“Plaintiff is under the misapprehension that an agency responding to a . . . FOIA request provide a\n‘search certificate and a ‘Vaughn’ index. . . . Plaintiff is advised that there is no requirement that an agency provide a\n‘search certificate’ or a ‘Vaughn’ index on an initial request for documents. The requirement for detailed\ndeclarations and Vaughn indices is imposed in connection with a motion for summary judgment filed by a defendant\nin a civil action pending in court.”). Plaintiff contended that the McGuire Declaration “utterly failed to identify the\nabundant and ambiguous redactions in a systematic manner[,]” and that “Defendant provided no explanation as to\nhow the deletions correlate specifically and unambiguously to the corresponding exemptions.” Plaintiff’s\nMemorandum at 6. Defendant maintained that it “used a coded index to satisfy the requirements of the Vaughn\nindex[,]” and that the detail of the McGuire Declaration “is clear, specific, and unambiguous.” Defendant’s\nResponse at 12.\n\n The undersigned finds that the McGuire Declaration contains an adequately detailed justification for each\nclaimed exemption and an explanation of the redacted information. Further, the undersigned was guided by the\nreference to the claimed exemptions clearly denoted at the bottom of each disclosed document and the corresponding\nexplanation of the withheld information in the McGuire Declaration. See McGuire Declaration ¶ 33 (“Exemption\nb(2) was asserted to protect special agent sequence numbers and was asserted in two instances: (1) on page one of\nExhibit A, Report of Investigation, ‘INVESTIGATED BY’ and, (2) on page two of Exhibit A, ‘REPORT\nPREPARED BY.’”); see also McGuire Declaration ¶¶ 22, 28-30. Based on the review of the Defendant’s\nDeclaration and an independent review of the redacted documents, the undersigned finds that Defendant sufficiently\n\fBangoura v. United States Department of the Army 13\n\n (1) Exemption 2\n\n At issue in this action are two instances in which Exemption 2 was invoked to justify\n\nnon-disclosure. Exemption 2 of the FOIA exempts from mandatory disclosure records “related\n\nsolely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). “The\n\nphrase ‘personnel rules and practices’ has been interpreted to include not only ‘minor\n\nemployment matters’ but also ‘other rules and practices governing agency personnel.’”\n\nKurdyukov v. U.S. Coast Guard, 578 F. Supp. 2d 114, 124 (D.D.C. 2008) (quoting Crooker v.\n\nBureau of Alcohol, Tobacco and Firearms, 670 F. 2d 1051, 1056 (D.C. Cir. 1981) (en banc)).\n\nExemption 2 applies when an agency meets two criteria. “First, such information must be ‘used\n\nfor predominately internal purposes.’ Second, the agency must show either that ‘disclosure may\n\nrisk circumvention of agency regulation,’ or that ‘the material relates to trivial administrative\n\nmatters of no genuine public interest.’” Id. at 124-25 (citations omitted); see also Amuso v. U.S.\n\nDep’t of Justice, No. CIV.A.07-1935, 2009 WL 535965, at *6 (D.D.C. Mar. 4, 2009). If the\n\ninformation used is for predominantly internal purposes “the disclosure of which would risk\n\ncircumvention of agency statutes [such information is] . . . protected by the so-called ‘high 2’\n\nexemption.” Id. at 125 (quoting Schiller v. Nat’l Labor Relations Bd., 964 F. 2d 1205, 1207\n\n(D.C. Cir. 1992)). However, if the material at issue relates to trivial administrative matters of no\n\ngenuine public interest, it is deemed “low 2\" exempt material. Id. “Low 2” exempt information\n\nincludes “file numbers, initials, signature and mail routing stamps, references to interagency\n\ntransfers, and data processing references.” Id. (quoting Scherer v. Kelley, 584 F. 2d 170, 175-76\n\n\nprovided a Vaughn index equivalent that sufficiently articulated the claimed exemptions and the information\nwithheld, and disclosed all reasonably segregable, nonexempt information. Accordingly, Defendant’s motion for\nsummary judgment as to Count Two of the Second Amended Complaint is granted.\n\fBangoura v. United States Department of the Army 14\n\n(7th Cir. 1978)).\n\n Defendant invoked Exemption 2 in two instances to “protect special agent sequence\n\nnumbers[]” which are used “to identify agents when they perform a myriad of administrative\n\nfunctions (writing reports, accessing CID information systems, etc.).” Declaration of Phillip J.\n\nMcGuire (“McGuire Declaration”) (Document No. 23-3), ¶ 22; see also McGuire Declaration ¶\n\n33 (Defendant redacted sequence numbers listed under “INVESTIGATED BY” and\n\n“REPORTED BY” on page one and two of Exhibit A, CID Report of Investigation). The\n\nDefendant maintained that the redacted sequence numbers should be exempted under a hybrid of\n\nthe “high 2” and “low 2” categories, as the “sequence numbers or internal codes have internal\n\nsignificance only,” and are used as “part of the security measures used to verify that authorized\n\nagents are accessing CID information systems.” Id. at 19; see also McGuire Declaration ¶ 23.\n\nDefendant further contended that disclosure of these sequence numbers “could open the door to\n\nunauthorized access or impersonation of agents which could allow ‘unauthorized individuals to\n\naccess sensitive information within the CID systems.’” Id.\n\n Plaintiff asserted that the sequence numbers are “neither routine nor trivial, but directly\n\nbear[s] on this case’s central issues – Defendant’s apparently wilful obfuscation and failure to\n\nconduct a reasonable search in response to Plaintiff’s FOIA requests.” Plaintiff’s Memorandum\n\nat 8. Plaintiff’s assertion is premised on his contention that the redacted sequence numbers could\n\n“identify or relate to Government personnel who had knowledge of Plaintiff’s arrest and\n\ndetention” which could determine “whether additional responsive information exists and whether\n\nthe meager information produced to date should have been located and produced sooner.” Id.\n\nPlaintiff also argued that Defendant did not demonstrate that disclosure of the sequence numbers\n\fBangoura v. United States Department of the Army 15\n\n“would ‘significantly risk circumvention of agency regulations or statutes.” Id. Instead, Plaintiff\n\ninsisted that Defendant “identif[ied] no substantial risk” and based its claim of exemption on\n\n“unfounded speculation[.]” Id.\n\n The undersigned finds Plaintiff’s assertions unavailing. The withheld information–special\n\nagent sequence numbers–is within the bounds of the internal workings of the agency which\n\nproperly satisfies the criteria of information exempted for usage which is “predominately\n\ninternal.” As noted in Schoenman, “material is considered predominately internal where it ‘was\n\ndesigned to establish rules and practices for agency personnel and . . . involve[s] no secret law of\n\nthe agency.’” Schoenman v. FBI, 575 F. Supp. 2d 136, 154 (D.D.C. 2008) (internal quotation\n\nmarks and citations omitted). In the instant action, the sequence numbers withheld related to the\n\ninternal practice of the agency to identify the users accessing its information systems. Plaintiff\n\ncannot overcome the proposition that such numbers do not embody any “‘secret law’ of the\n\nagency” or [an] “attempt to modify or regulate public behavior.” Crooker, 670 F. 2d at 1073-\n\n1075. Moreover, the withheld material–special agent sequence numbers–“need not be actual\n\n‘rules and practices’ to qualify under Exemption 2, as the statute provides that matter ‘related’ to\n\nrules and practices is also exempt.” See Kurdyukov, 578 F. Supp. 2d at 124 (citing Schwaner v.\n\nDep’t of the Air Force, 898 F.2d 793, 795 (D.C. Cir. 1990)). In this instance, the sequence\n\nnumbers are tools for the special agents to perform their duties. Moreover, the sequence numbers\n\nare akin to the use of initials or signatures which is the type of information contemplated for non-\n\ndisclosure under the ‘low 2’ exemption. See id. at 125 (The low 2 category includes exemptions\n\nfor “file numbers, initials, signature and mail routing stamps, references to interagency transfers,\n\nand data processing references.”); see also Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 83 F.\n\fBangoura v. United States Department of the Army 16\n\nSupp. 2d 105, 110 (D.C. Cir. 1999) (information properly withheld pursuant to the “low 2”\n\nexemption encompasses trivial administrative data such as “file numbers, mail routing stamps,\n\ndata processing notations and other administrative markings.”). Plaintiff contended that\n\ndisclosure of the sequence numbers would have allowed him access to potential information\n\nrelating to his arrest and detention. However, Plaintiff has not proffered any evidence to raise a\n\ngenuine issue of material fact that the sequence numbers are of genuine interest to the public\n\ngenerally. For these reasons, the undersigned finds that Defendant properly withheld the special\n\nagent sequence numbers as the information is “used for predominately internal purposes” and\n\n“relates to trivial administrative matters of no genuine public interest.”\n\n\n (2) Exemption 6\n\n Defendant invoked the two provisions of the FOIA which protect personal privacy\n\ninterests, Exemption 6 and 7(C), to withhold the balance of the information redacted within the\n\nreleased documents. Defendant’s Memorandum at 19-24; see Defendant’s Response at 16-17\n\n(“[T]he identities of CID special agents and military police, third parties mentioned in the\n\ninvestigation report, and third party witnesses have been properly withheld, based on FOIA\n\nExemptions 6 and 7(C), from the CID report of investigation, agent’s notes, Agent’s Activity\n\nSummary, and Daily Staff Journal or Duty Officer’s Log released to Plaintiff.”); see also\n\nMcGuire Declaration ¶¶ 28-32. The undersigned will address each party’s contentions with\n\nrespect to exemption 6.9\n\n Exemption 6 of the FOIA permits governmental agencies to withhold disclosure of\n\n\n\n 9\n See, n.12, infra.\n\fBangoura v. United States Department of the Army 17\n\n“personnel and medical files and similar files the disclosure of which would constitute a clearly\n\nunwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The analysis of whether\n\nDefendant properly withheld information pursuant to Exemption 6, requires the court to first\n\ndetermine whether the withheld information is “contained in personnel, medical or ‘similar’\n\nfiles.” Wash. Post Co. v. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (1982). In 1982,\n\nthe Supreme Court adopted a broad construction of the term “similar files,” holding that the term\n\nis “intended to cover detailed Government records on an individual which can be identified as\n\napplying to that individual.” Concepcion v. F.B.I., No. CIV.A.07-1766, 2009 WL 794484, at *13\n\n(D.D.C. Mar. 27, 2009) (quoting U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602\n\n(1982)). The court must next determine whether disclosure of the withheld information serves as\n\na clearly unwarranted invasion of personal privacy, a consideration that requires the court to\n\n“balance the private interest involved (namely, the individual’s right of privacy) against the\n\npublic interest (namely, the basic purpose of the Freedom of Information Act, which is to open\n\nagency action to the light of public scrutiny)[]” that would be advanced by disclosing it.\n\nBigwood v. U.S. Agency for Intern. Development, 484 F. Supp. 2d 68, 75 (D.D. C. 2007)\n\n(internal quotations marks and citations omitted). The public interest under FOIA is limited to\n\nthat which “‘sheds light on an agency’s performance of its statutory duty’ in order to inform the\n\ncitizens ‘about what their government is up to.’” S.D. Edmonds v. FBI, 272 F. Supp. 2d 35,52\n\n(D.D.C. 2003) (quoting U.S. Dep’t of Justice v. Reporters Comm. For Freedom of the Press, 489\n\nU.S. 749, 773 (1989)).\n\n Pursuant to Exemption 6, Defendant withheld the name or identities of (1) CID special\n\nagents and Military Police officers that initiated, investigated or supervised the investigation of\n\fBangoura v. United States Department of the Army 18\n\nthe October 28, 2004 incident involving Plaintiff, (2) third parties that were interviewed by the\n\ninvestigation officials and (3) third parties mentioned in the disclosed documents that either\n\nreceived a copy of the report of investigation, recorded information regarding police activity that\n\noccurred during various shifts on October 28, 2004, or that “were not of investigative interest to\n\nCID.”10 See McGuire Declaration ¶¶ 28-30; see also McGuire Declaration Exhibits (Document\n\nNo. 23-3) at 17-29. Plaintiff did not dispute Defendant’s showing that the redacted information\n\nqualifies as a “personnel, medical or similar file” as contemplated by Exemption 6. See\n\nPlaintiff’s Memorandum at 11 (“Here, even acknowledging that the information contains\n\npersonal information . . . .”). However, it is clear that Defendant withheld from the investigation\n\nmaterials identifying personal information with respect to its personnel. Moreover, the redacted\n\nnames of third parties, whether they are witnesses or individuals unrelated to the October 28,\n\n2004 investigation involving Plaintiff, falls within the broad construction of the term “similar\n\nfiles” as contemplated by Exemption 6 in that the redacted information applies to particular\n\nindividuals. Thus, the Defendant meets the threshold requirement for Exemption 6 protection.\n\nIndeed, “[t]he threshold is ‘fairly minimal,’ such that ‘all information which applies to a\n\nparticular individual is covered by Exemption 6, regardless of the type of file in which it is\n\ncontained.” Concepcion v. F.B.I., No. CIV.A.07-1766, 2009 WL 794484, at *13 (D.D.C. Mar.\n\n27, 2009).\n\n Having met the threshold requirement, the court next turns its attention to the “balancing\n\nof the individual’s right of privacy against the preservation of the basic purpose of the Freedom\n\n\n\n 10\n Defendant contended that only one entry, entry 35, on the “Daily Staff Journal or Duty Officer’s Log”\nrelates to the Plaintiff and the investigation on October 28, 2004. See McGuire Declaration ¶ 15.\n\fBangoura v. United States Department of the Army 19\n\nof Information Act to open agency action to the light of public scrutiny.” Amuso, 2009 WL\n\n535965, at *7 (internal quotation marks and citations omitted). In support of its assertion of the\n\nprivacy interests involved, Defendant contended that its agents and military police “conduct\n\nofficial inquiries into various criminal and national security cases . . . which constitute\n\nreasonable, but nonetheless serious intrusions into peoples’ lives[,]” and that the publicity from\n\nthe disclosure of their names “may seriously prejudice their effectiveness in conducting other\n\ninvestigations” or subject them to “harass[ment]” and “animosity[.]” McGuire Declaration ¶ 28.\n\nDefendant further contended that its law enforcement personnel, “as individuals” require\n\nprotection from “unnecessary, unofficial questioning as to the conduct of this or other\n\ninvestigations[.]” Id. Moreover, Defendant asserted that obtaining information in an interview\n\nfrom individuals regarding possible criminal activities “is one of the most productive\n\ninvestigative tools utilized by law enforcement agencies[,]” and that “[t]he largest roadblock in\n\nsuccessfully obtaining the desired information . . . is fear by the interviewee that his [or her]\n\nidentity will possibly be exposed[.]” Id. ¶ 31. Defendant contended that it withheld the names of\n\n“third party interviewees [that] provided CID with valuable information concerning possible\n\ncriminal activities[,]” as such exposure could result in that person being “harassed, intimidated,\n\nor threatened with legal or economic reprisal or possible physical harm.” Id. Defendant also\n\nmaintained that “[t]he information provided by the interviewees were processed in a effort to\n\nrelease [to the Plaintiff] as much information as possible[.]” Id. ¶ 32. Likewise, Defendant\n\ncontended that third parties that were “merely mentioned in the responsive criminal investigative\n\nfile . . . who were not of investigative interest to CID . . . [or] considered subjects of possible\n\ncriminal activity, . . . victims or witnesses[]” maintain “legitimate privacy interests in not having\n\fBangoura v. United States Department of the Army 20\n\ninformation about them disclosed.” Id. ¶ 29. Such disclosure “could subject these individuals\n\nand their family members to possible harassment or criticism and focus derogatory inferences\n\nand suspicion on them.” Id.\n\n Plaintiff disputed Defendant’s explanation of its withholdings, and argued that “the\n\npublic’s significant interest [is] in understanding the nature and scope of Defendant’s inability to\n\nreasonably respond to Plaintiff’s FOIA requests[.]” Plaintiff’s Memorandum at 11. However,\n\nPlaintiff’s assertion of a public interest, in this instance, is entirely misplaced: a fair assessment\n\nof Plaintiff’s claim of public interest is that it is predicated on Plaintiff’s concern with respect to\n\nthe reasonableness and adequacy of Defendant’s search, rather than on the merits of whether it\n\nwas proper for the defendant to withhold information pursuant to exemptions 6 and 7. See id. at\n\n9 (“Neither exemption applies here, as Defendant identifies no privacy interest sufficient to\n\nshield Defendant’s incompetent response to Plaintiff’s FOIA requests from the light of public\n\nscrutiny.”); see also id. at 11 (“This case centers on the dereliction of Defendant’s fundamental\n\nresponsibilities under FOIA, and its chronically incompetent search for documents by failing to\n\nidentify persons with knowledge and records generated by or relating to those persons and their\n\nknowledge of Plaintiff.”).\n\n Additionally, Plaintiff contended that\n\n [E]ven acknowledging that the information contains personal\n information, Defendant identifies no privacy interest which\n outweighs the public’s interest in disclosure of the redacted\n information, which clearly would shed great light on Defendant’s\n performance (or as seen throughout this case, lack of performance)\n . . . of its statutory duties, by identifying those persons who had\n knowledge of records involving Plaintiff and who properly were\n the best sources of responsive information regarding Plaintiff’s\n FOIA request.\n\fBangoura v. United States Department of the Army 21\n\nid. at 11. However “[i]t is the requestor’s obligation to articulate a public interest sufficient to\n\noutweigh an individual’s privacy interest, and the public interest must be significant.” Amuso,\n\n2009 WL 535965, at *7 (citing Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172\n\n(2004)). Plaintiff cited no authority to support disclosure of such information to help him\n\ndetermine whether Defendant properly fulfilled its search obligations pursuant to the FOIA.11\n\nSee Plaintiff’s Memorandum at 12 (“The redacted information at issue is central to determining\n\nwhat information may remain uncovered, or what avenues the Defendant should have pursued to\n\nconduct a reasonable FOIA search.”). It is the privacy interest of the individuals, not the agency,\n\nwhich is at stake if personal information is disclosed. Amuso, 2009 WL 535965, at *7 (citations\n\nomitted). Thus, the court concludes that Defendant properly withheld the names and/or identities\n\nof the redacted law enforcement personnel or third parties interviewed during the investigation of\n\nthe October 28, 2004 incident or mentioned in the responsive documents under Exemption 6.12\n\nFor these reasons, the undersigned finds that Plaintiff failed to carry its burden of asserting a\n\n\n\n 11\n Plaintiff insisted that “this case teems with evidence that Defendant has acted in bad faith through a\npersistent pattern of strategic ‘errors’, obfuscation, and inaction in response to Plaintiff’s legitimate FOIA requests,\nwhich attempt[s] to help determine whether Plaintiff was the victim of racial profiling by the Government.”\nPlaintiff’s Memorandum at 13. The undersigned finds Plaintiff’s arguments of such “evidence” unavailing and finds\nno basis to find Defendant acted in bad faith, in this instance, in which Defendant searched, located and produced the\nresponsive documents in this action. Moreover, Plaintiff’s assertion, in this instance, denotes the flaw in his\nargument. The only interest proffered by Plaintiff, is a personal one, which is “irrelevant to the FOIA, which by law\nis sensitive only to a public interest.” Moore v. United States, No. CIV.A.08-223, 2009 W L 691120, at *3 (D.D.C.\nMar. 17, 2009) (citation omitted).\n\n 12\n Defendant withheld the controverted information on the basis of Exemption 6 and 7(C). Because the\ncourt has found that the information was properly withheld pursuant to Exemption 6, there is no need to make a\ndetermination regarding the applicability of Exemption 7(C). Id. (citing Simon v. Dep’t of Justice, 980 F.2d 782,\n785( D.C.Cir. 1994)). Defendant admitted that the “United States Army Criminal Investigation Command is the\nfelony law enforcement agency of the U.S. Army[]” and that CID produced the reports and notes released to Plaintiff\nas “part of a criminal investigation conducted during the normal course of law enforcement duties.” McGuire\nDeclaration ¶ 25. Plaintiff did not contest these assertions. The privacy interests asserted by Defendant as explained\nabove is sufficient to warrant the withholding of the names and identities of the law enforcement agents and third\nparties involved in CID’s investigation.\n\fBangoura v. United States Department of the Army 22\n\npublic interest sufficient to outweigh an individual’s privacy interest.\n\n\n\nV. CONCLUSION\n\n Upon consideration of the motions, oppositions, replies and the entire record herein, and\n\nfor the reasons set forth herein, it is this 8th day of April, 2009,\n\n ORDERED, nunc pro tunc to March 31, 2009, that Defendant[’s] Motion to Dismiss or\n\nin the Alternative for Summary Judgment (Document No. 23) is GRANTED; and it is\n\n FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Document No.\n\n41) is DENIED.13\n\n\n\n\n /s/\n DEBORAH A. ROBINSON\n United States Magistrate Judge\n\n\n\n\n 13\n After the completion of briefing on the parties’ dispositive motions, Plaintiff, on two occasions directed\nthe court to “supplemental legal authority” he contended was in support of his motion. See Document Nos. 48, 52.\nThe undersigned finds that the authority is irrelevant to the proper consideration of the disputed issues in the parties’\npending motions.\n\f", "ocr": false, "opinion_id": 2668224 } ]

[ "949 N.E.2d 1098", "351 Ill. Dec. 3" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n949 N.E.2d 1098 (2011)\n351 Ill. Dec. 3\nLANGONE\nv.\nSCHAD, DIAMOND AND SHEDDEN, P.C.\nNo. 111942.\nSupreme Court of Illinois.\nMay 1, 2011.\nDisposition of Petition for Leave to Appeal[*] Denied.\nNOTES\n[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.\n\n", "ocr": false, "opinion_id": 2529378 } ]

[ "165 U.S. 107", "17 S. Ct. 262", "41 L. Ed. 648", "1897 U.S. LEXIS 1954" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2956, "opinion_text": "\n165 U.S. 107 (1897)\nSCOTT\nv.\nDONALD.\nNo. 410.\nSupreme Court of United States.\nArgued October 21, 22, 1896.\nDecided January 18, 1897.\nAPPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA.\n*111 Mr. William A. Barber, Attorney General of the State of South Carolina, for appellants.\nMr. J.P. Kennedy Bryan for appellee.\nMR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.\nHaving, in the cases at law, in which the opinion has just been delivered, and for reasons therein given, reached the conclusion that the dispensary law of South Carolina, approved January 2, 1895, is so far unconstitutional and void that this *112 plaintiff can maintain an action at law against these defendants for seizing his liquors, we are called upon now to consider whether there is a valid remedy by way of injunction to restrain executive officers from continued and repeated acts of trespass in seizing and carrying away, and confiscating for the use of the State the property of the complainant so imported.\nThe bill prays for an injunction on the several grounds of irreparable damage; that the acts complained of prevent the exercise by the complainant of his right to import without molestation lawful commodities, the products of other States; to avoid multiplicity of suits; and the want of adequate remedies at law.\nThe objections to proceedings against state officers by injunction are that it is, in effect, proceeding against the State itself, and that it interferes with the official discretion vested in the officers. The answer to such objections is found in a long line of decisions of this court: Osborn v. The United States Bank, 9 Wheat. 738; Dodge v. Woolsey, 18 How. 331; Board of Liquidation v. McComb, 92 U.S. 531; Cummings v. National Bank, 101 U.S. 153; Memphis &amp; Little Rock Railroad v. Railroad Commissioners, 112 U.S. 609; Virginia Coupon cases, 114 U.S. 269, 295, 315; Pennoyer v. McConnaughy, 140 U.S. 1; Belknap v. Schild, 161 U.S. 10, 18.\nIn re Tyler, 149 U.S. 164, was a case where the receiver of the South Carolina Railway Company filed a bill in equity in the Circuit Court of the United States against the treasurers and sheriffs, eighteen in number, in the counties through which the railroads in his possession passed, alleging that the treasurers were about to issue tax executions and the sheriffs about to levy and seize thereunder property of the railway company for the taxes for the fiscal year beginning November 1, 1890. The bill alleged that the taxes for that fiscal year were unconstitutional and illegal in part upon various grounds; that the levy and sale of the road would cause irreparable injury; that there was no adequate remedy at law; that a multiplicity of suits would be necessary to protect his rights if he sued at law; and prayed for an injunction against the issue and levy of the tax warrants in question. After *113 answer and full hearing, the court issued an injunction restraining M.V. Tyler, sheriff of Aiken County, his deputies and agents, from further intermeddling, interfering with, keeping and holding the personal property distrained upon by him belonging to the petitioner, as receiver, and ordering that the said property should be restored to the custody of the receiver. It is being shown subsequently by affidavits that Tyler refused to comply with the injunction and continued to hold and detain said property, the court adjudged him guilty of contempt, imposed a fine upon him, and committed him to the custody of the marshal of the court until he should pay said fine or purge himself of his contempt. A petition for a writ of habeas corpus was filed in this court, and, upon the hearing of the cause, it was mainly argued, on behalf of the petitioner, that the proceedings in the Circuit Court were substantially a suit against the State of South Carolina, and that by its mandatory injunction upon its officers the court divested the State of its possession.\nThis court denied the writ, and, speaking through the Chief Justice, thus expressed the conclusion reached in the previous cases, many of which were cited in the argument:\n\"The object of this petition was to protect the property, but even if it were to be regarded as a plenary bill in equity properly brought for the purpose of testing the legality of the tax, we ought to add that, in our judgment, it would not be obnoxious to the objection of being a suit against the State. It is unnecessary to retravel the ground so often traversed by this court in exposition and application of the Eleventh Amendment. The subject was but recently considered in Pennoyer v. McConnaughy, 140 U.S. 1, in which Mr. Justice Lamar, delivering the opinion of the court, cites and reviews a large number of cases. The result was correctly stated to be that where a suit is brought against defendants who claim to act as officers of a State, and, under color of an unconstitutional statute, commit acts of wrong and injury to the property of the plaintiff, to recover money or property in their hands unlawfully taken by them in behalf of the State; or for compensation for damages; or, in a proper case, for an *114 injunction to prevent such wrong and injury; or for a mandamus in a like case to enforce the performance of a plain legal duty, purely ministerial; such suit is not, within the meaning of the amendment, an action against the State.\n\"And while it is conceded that the principle stated by Chief Justice Marshall in the leading case of Osborn v. Bank of the United States, 9 Wheat. 738, that `in all cases where jurisdiction depends on the party, it is the party named in the record,' and that the `Eleventh Amendment is limited to those suits in which a State is a party to the record,' had been qualified to a certain degree in some of the subsequent decisions of this court; yet it was also rightly declared that the general doctrine there announced, that the Circuit Courts of the United States will restrain a state officer from executing an unconstitutional statute of the State when to execute it would be to violate rights and privileges of the complainant that had been guaranteed by the Constitution and would do irreparable damage and injury to him, has never been departed from.\"\nSuppose it established that the objections just mentioned fail, it is suggested that jurisdiction did not exist in the Circuit Court because the value in controversy did not exceed the sum of two thousand dollars. It is alleged in the bill, and there was evidence to show, that the complainant intends to import for his own use, from time to time as he may need the same, ales, wines and liquors, the products of other States, of the value exceeding two thousand dollars, which are threatened to be seized by the state constables, claiming to act under the dispensary law. And the agreed statement of facts contains the following statements: \"Previous to filing of bill and temporary injunction granted in this case the state constables seized, intended and threatened to seize in future, all intoxicating liquors whatsoever coming into the State from other States and foreign countries, and to carry out in full all the provisions of the dispensary law of January 2, 1895; and the value of the right of importation of ales, wines and other liquors, products of other States and countries, is of the value of two thousand dollars and upwards; and the difference in the price to the consumer, like the plaintiff, of such liquor *115 bought at the state dispensary of South Carolina and bought out of the State is about fifty to seventy-five per cent in favor of imported liquors.\"\nSuch statements sufficiently concede that the pecuniary value of plaintiff's rights in controversy exceed the value of two thousand dollars. Nor can it be reasonably claimed that the plaintiff must postpone his application to the Circuit Court, as a court of equity, until his property to an amount exceeding in value two thousand dollars has been actually seized and confiscated, and when the preventive remedy by injunction would be of no avail.\nBut while we think that the complainant was entitled to an injunction against those defendants who had despoiled him of his property, and who were threatening to continue so to do, we are unable to wholly approve the decree entered in this case.\nThe theory of the decree is that the plaintiff is one of a class of persons whose rights are infringed and threatened, and that he so represents such class that he may pray an injunction on behalf of all persons that constitute it. It is, indeed, possible that there may be others in like case with the plaintiff, and that such persons may be numerous, but such a state of facts is too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction. We prefer to accept, in this respect, the views expressed by Mr. Justice Nelson, in the case of Cutting v. Gilbert, 5 Blatchford, 259, 261. There a bill had been filed by several bankers, as well for themselves as all others in the same interest, against the assessor and collector of a certain tax under the ninety-ninth section of the Internal Revenue Act of June 30, 1864, seeking to restrain the collection of such tax as illegal, and the learned justice disposed of the question in the following language:\n\"This is a bill of peace to quiet the rights of parties, and to put an end to further litigation. The bill is founded on the idea that all persons in business as brokers, or who are bankers doing business as brokers, charged with the tax in question, have such a unity or joinder of interest in contesting it, that all may join in the bill for that purpose; and that as the *116 parties are so numerous as to make it inconvenient to join all of them, a determinate number may appear in the name of themselves and for the rest. I have not been able to concur in this view. The interest that will allow parties to join in a bill of complaint, or that will enable the court to dispense with the presence of all the parties, when numerous, except a determinate number, is not only an interest in the question, but one in common in the subject-matter of the suit; such as the case of disputes between the lord of a manor and his tenants; or where several tenants of a manor claim the profits of a fair; or between the tenants of one manor and those of another; or in a suit to settle a general fine to be paid by all the copy-hold tenants of a manor, in order to prevent a multiplicity of suits. In all these and the like instances given in the books, there is a community of interest growing out of the nature and condition of the right in dispute; for, although there may not be any privity between the numerous parties, there is a common title out of which the question arises, and which lies at the foundation of the proceedings... . In the case before me, the only matter in common among the plaintiffs, or between them and the defendants, is an interest in the question involved, which alone cannot lay a foundation for the joinder of parties. There is scarcely a suit at law, or in equity, which settles a principle or applies a principle to a given state of facts, or in which a general statute is interpreted, that does not involve a question in which other parties are interested, as, for instance, the doctrine of trusts, and the statutes of descents, of frauds, of wills and the like; yet no lawyer would contend that such an interest would justify a joinder of parties as plaintiffs, in a case arising under the law of trusts, or under any of the statutes mentioned. The same may be said of questions arising under the revenue laws, such as the tariff and the excise laws, and which are the subject of litigation in the courts almost daily. Large classes of persons, other than the parties to the suit, are interested in the questions involved and determined. To allow them to be made parties to the suit would confound the established order of judicial proceedings, and lead to endless perplexity and confusion.\"\n*117 Similar views prevailed in the case of Baker v. City of Portland, 5 Sawyer, 566, where it was held by District Judge Deady, Mr. Justice Field concurring, that any number of persons who may from time to time be engaged in making street improvements under several and distinct contracts with a city are not therefore a class of persons having a common interest in the subject of street improvements, concerning which any one or more may sue for the whole.\nThe decree is also objectionable because it enjoins persons not parties to the suit. This is not a case where the defendants named represent those not named. Nor is there alleged any conspiracy between the parties defendant and other unknown parties. The acts complained of are tortious, and do not grow out of any common action or agreement between constables and sheriffs of the State of South Carolina. We have, indeed, a right to presume that such officers, though not named in this suit, will, when advised that certain provisions of the act in question have been pronounced unconstitutional by the court to which the Constitution of the United States refers such questions, voluntarily refrain from enforcing such provisions; but we do not think it comports with well-settled principles of equity procedure to include them in an injunction in a suit in which they were not heard or represented, or to subject them to penalties for contempt in disregarding such an injunction. Fellows v. Fellows, 4 John. Chan. 25, citing Iveson v. Harris, 7 Ves. 257.\nThe decree of the court below should therefore be amended by being restricted to the parties named as plaintiff and defendants in the bill, and this is directed to be done, and it is otherwise\nAffirmed.\nMR. JUSTICE BROWN dissented, for the reason given by him in his dissent in Scott v. Donald, ante, 102.\nMR. JUSTICE BREWER did not hear the argument and took no part in the decision of this case.\n", "ocr": false, "opinion_id": 94588 }, { "author_str": "Shiras", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Shiras,\nafter stating the case, delivered the opinion of the court.\nHaving, in the cases at law, in which the opinion has just been delivered,, and for reasons therein given, reached the conclusion that the dispensary law of Smith. Carolina, approved January 2, -1895, is so far unconstitutional and void that this *112plaintiff can maintain an action at law against these defendants for' seizing his liquors, we are called upon now to consider whether there is a valid remedy, by way of injunction to restrain executive officers from continued and repeated acts of trespass in seizing and carrying away, and confiscating for the use of the State the property of the- complainant so imported.\nThe bill prays for an injunction on the several grounds of irreparable damage ; that the acts complained of prevent the exercise by the complainant of his right to import without molestation lawful commodities, the products of other States ; to avoid multiplicity of suits; and the want of adequate remedies at law.\nThe objections to proceedings against state officers by injunction are that it is, in effect, proceeding against the State itself, and that it interferes with the official discretion vested in the officers. The answer to such objections is found in a* long line of decisions of this court: Osborn v. The United States Bank, 9 Wheat. 738; Dodge v. Woolsey, 18 How. 331; Board of Liquidation v. McComb, 92 U. S. 531; Cummings v. National Bank, 101 U. S. 153; Memphis &amp; Little Rock Railroad v. Railroad Commissioners, 112 U. S. 609; Virginia Coupon cases, 114 U. S. 269, 295, 315; Pennoyer v. McConnaughy, 140 U. S. 1; Belknap v. Schild, 161 U. S. 10, 18.\nIn re Tyler, 149 U. S. 164, was a case where the receiver of the South. Carolina Railway Company filed a bill in equity in the Circuit Court of the United States against the treasurers and sheriffs, eighteen in number, in the counties through which the railroads in his possession passed, alleging that the treasurers were about to issue tax executions and the sheriffs about to levy and seize thereunder property of the railway company for the- taxes for the fiscal year beginning November 1, 1890. The bill alleged that the taxes for that fiscal year were unconstitutional and illegal in part upon various grounds; that the levy and sale of the road would cause irreparable injury; that there was no adequate remedy at law; that a multiplicity of suits would be necessary to protect- his rights if he sued at law; and prayed for an injunction against the' issue and levy of the tax warrants in question. After *113answer and full hearings the court- issued an injunction restraining M. Y. Tyler, sheriff of Aiken County, his deputies and agents, from further intermeddling, interfering with, keeping and holding tlie personal'property, distrained upon by him belonging to the petitioner, as 'receiver*;and' ordering that the said property should be restored to tbetíústddy’bf the receiver. It is being shown subsequently by affidavits that Tyler.refusetl to comply with- the injunction and continued to hold and. detain said property, the court adjudged- him guilty of contempt, imposed a fine upon him, and committed him to the custody of the marshal of the court until he should pay said fine or purge himself of his contempt. A petition for a writ of habeas corpus was filed in this court, and,' upon the hearing of the cause, it was mainly argued, on behalf of the petitioner, that the proceedings in the Circuit Court were substantially a suit against the State of South Carolina, and that by its mandatory injunction upon its officers the court divested the State of its possession.\nThis court denied the writ, and, speaking through the Chief Justice, thus expressed the conclusion reached in the previous cases, many of which were cited in the argument.:\n“The object of this petition was to protect the property, but even if it were to be regarded as a plenary bill in equity properly brought for the purpose of testing the legality of the tax, we ought to add that, in our judgment, it -would not be obnoxious to the objection of being a suit against the State. It is unnecessary to retravel the ground so often traversed by this court in exposition and application of the Eleventh Amendment. The subject was but recently considered in Pennoyer v. McConnaughy, 140 U. S. 1, in which -Mr. Justice Lamar, delivering' the opinion of the court, cites and reviews a large number of cases.. The result was correctly stated to be that where a suit is brought against defendants who claim to act as officers of a State, and, under' color of an unconstitutional statute, commit acts of wrong and-injury to the property of the plaintiff, to recover money or property in-their hands unlawfully taken by them in behalf of the State ; or for compensation for damages; pr, in a proper case, for an *114injunction' to prevent such wrong and injury; or for a mandamus in a like case to enforce the performance of a plain legal duty, purely ministerial; such suit is not, within the meaning of the amendment, an action against the State.\n“ And while it is conceded that the principle stated by Chief Justice Marshall in the leading case of Osborn v. Bank of the United States, 9 Wheat. 738, that ‘in all cases where jurisdic-' tión depends on the party,it is the party named in the record,’ and that the ‘ Eleventh Amendment is limited to those suits in which a State is a party to the record,’ had been- qualified to a certain degree in some of the subsequent decisions of this court; yet it was also rightly declared that the general doctrine there'announced, that the Circuit Courts of the United Stateso will restrain a state officer from executing an unconstitutional statute of the State when to execute it would .be to violate rights and privileges of the complainant that had been, guar-' anteed by'the Constitution and would do irreparable \"damage- and injury to him, has never been departed from.”\nSuppose it established that the objections just mentioned fail, it is suggested that jurisdiction did not exist in the Cir: cuit Court because the value in controversy did not exceed the sum of two thousand dollars. It is alleged in the bill, and there was evidence to show, that the complainant intends to import for his own use, from time to time as he may need the same, ales, wines and liquors, the products of other States, of the value exceeding two thousand dollars, which are threatened to be seized by the state constables, claiming to act under the dispensary law. And the agreed statement of facts contains the following statements: “ Previous to filing of bill and temporary injunction granted in this case the state constables seized, intended and threatened to seize in future, all intoxicating liquors whatsoever coming into the State from other States and foreign countries, and to carry out in full all the provisions of the dispensary law of January 2, 1895; and the value of the right of importation of °ales, wines .and other liquors, products of other States and countries, is of the value of two thousand dollars and upwards; and the difference in the price to the consumer, like the plaintiff, of such’ liquor *115bought at the state dispensary of South Carolina and bought out of the State is about fifty to seventy-five per cent in favor of imported liquors.”\nSuch statements sufficiently concede that the pecuniary .value of plaintiff’s rights in controversy exceed the value of two thousand dollars. Nor can it be reasonably claimed that the plaintiff must postpone his application to the Circuit Court, as a court of equity, until his property to an amount exceeding in value two thousand dollars has been actually, seized and confiscated, and when the preventive remedy by injunction would be of no avail.\nBut while we think that the complainant was entitled to an injunction against those defendants who had despoiled him of his property, and who were threatening to continue so to do, we are unable to wholly approve the decree entered in this case.\nThe theory of the decree is that the plaintiff is one of a class of persons whose rights are infringed and threatened, and that he so represents such class that he may pray an injunction on behalf of all persons that constitute it. It is, indeed, possible that there may be. others in like case with the plaintiff, and that such persons may be numerous, but such a state of. facts is too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction. We prefer to accept, in this respect, the views expressed by Mr. Justice Nelson, in the case of Cutting v. Gilbert, 5 Blatchford, 259, 261. There a bill had been filed by several bankers, as vrell for themselves as all others in the same interest, against the assessor and collector of a certain tax .under the ninety-ninth-section of the Internal Revenue Act of June 30, 1861, seeking to restrain the collection of such tax as illegal, and the learned justice disposed of the question in the following language :\n“ This is a bill of peace to quiet the rights of parties, and to put an end to further litigation. The bill is founded oh the idea that all persons in business as brokers, or who are bankers doing business as brokers, charged with the tax in question, have such a unity or joinder of interest in contesting it, that all may join in the bill for that purpose; and that as the *116parties are so numerous as to make it inconvenient to join all of them, a determinate number may appear in the name of themselves and for the rest.- I have hot been able to concur . in this view. The interest that will allow parties to join in a bill of complaint, or that will enable the court to dispense with the presence of all the parties,'when numerous, except a determinate number, is.not only an interest in the question, but one in common in the subject-matter of the suit; such as the case of disputes between the lord of a manor and his tenants or-where several tenants of a manor claim the profits' of a fair ; or between the tenants of one manor and those of another; or . in a suit to settle a general fine to be paid by all the copy-hold tenants of a manor, in order to prevent a multiplicity of .suits. In'all these and the like instances given in-the books, there is a community of interest growing out of 'the nature ' and condition of the right in dispute; for, although- there may . not be any privity between the numerous parties, there is a common title out of which the question arises, and which lies ab the foundation of the proceedings. ... In the case before me, the only matter in. common among' the plaintiffs, or between them and the defendants, is an interest in the question involved, which alone cannot lay a foundation for the joinder of parties-. There is scarcely a suit at law, or in equity, which settles , a principle or applies a principle to a given state of facts, or in which a general statute is interpreted, that does not involve a question in which other parties aré interested, as, for instance, the. doctrine of trusts, and the statutes of descents., of frauds, of wills and the like; yet no lawyer would contend that such an interest would justify a joinder of parties as plaintiffs, in' a case arising under the law of trusts, or under any of the statutes mentioned. The same may be said of questions arising under the revenue-laws, such as the tariff and the excise laws, and which are the subject of litiga-don in the courts almost daily. Large classes of persons, other than the parties- to the suit, are interested in the questions involved and-determined. To allow them to be made parties to the suit would confound the established order of judicial proceedings, and lead, to endless perplexity and confusion.”\n*117Similar views prevailed in the case of Baker v. City of Portland, 5 Sawyer, 566, where it was held by District Judge Deady, Mr. Justice Field concurring, that any number of persons who may from time to time be engaged in making street improvements under several and distinct contracts With a city are not therefore a class of persons having a common interest in the- subject of street improvements, concerning which any one or- more may sue for the whole.\nThe decree is also objectionable because it enjoins persons not parties to the suit. This is not a case where the defendants named represent those not named. Nor is there alleged, ány conspiracy between the parties defendant' and other unknown parties. The acts complained of are tortious, and do not grow out pf any common action or agreement between constables and sheriffs of the State of South Carolina. We have, indeed, a- right to presume that such officers, though not named in this suit, will, when advised that certain provisions of the act in question have been pronounced unconstitutional by the court to which the Constitution of the United States refers such questions, voluntarily refrain from enforcing such provisions ; but we do not think it comports with well-settled principles of equity procedure to include them in an injunction in a suit in which they were not heard or represented, or to subject them to penalties for contempt in disregarding such an injunction. Fellows v. Fellows, 4 John. Chan. 25, citing Iveson v. Harris, 7 Ves. 257.\nThe decree of the court below should therefore be amended by being restricted to the parties named as plaintiff and defendants in the bill, and- this is directed to be done, and it is otherwise\n\nAffirmed.\n\n", "ocr": false, "opinion_id": 9417748 }, { "author_str": "Brown", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Brown\ndissented, for the reason given by him in his dissent in Scott v. Donald, ante, 102.\nMe. Justice Beewee did not hear the argument and took no part in the decision of this case.\n", "ocr": false, "opinion_id": 9417749 } ]

[ "894 F.2d 403" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/894/894.F2d.403.89-5530.html", "author_id": null, "opinion_text": "894 F.2d 403Unpublished Disposition\n NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Daniel Roger NISELY, Defendant-Appellant.\n No. 89-5530.\n United States Court of Appeals, Fourth Circuit.\n Submitted: July 11, 1989.Decided: Jan. 2, 1990.\n \n William E. Martin, Federal Public Defender; G. Alan Dubois, Assistant Federal Public Defender, on brief, for appellant.\n Dale J. Stone, Special Assistant United States Attorney, Office of the Staff Judge Advocate, on brief, for appellee.\n Before WIDENER, K.K. HALL and MURNAGHAN, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Daniel Roger Nisely appeals his conviction of three counts of assault with a dangerous weapon, 18 U.S.C. Sec. 113(c). His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), indicating that, in his view, the only arguably meritorious issue is that a statement by Nisely was involuntary. Nisely has filed an informal brief arguing that his conviction violated due process because of pre-indictment delay. In accordance with Anders, we have examined the entire record, including the imposition of sentence. Finding no merit in the claims presented and no other error upon review of the record, we affirm the judgment of conviction.\n \n \n 2\n Nisely's motion to voluntarily dismiss, founded upon his mistaken belief that such a disposition is required in order to pursue a 28 U.S.C. Sec. 2255 action, is denied. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, 18 U.S.C. Sec. 3006A, counsel has the obligation to advise Nisely, in writing, of his right to petition the United States Supreme Court for a writ of certiorari and, if Nisely so desires, to prepare the necessary papers. We therefore deny counsel's motion to withdraw from further representation. We dispense with oral argument because the facts and legal arguments are adequately presented in the record and briefs, and oral argument would not aid the decisional process.\n \n \n 3\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 535387 } ]

[ "708 F.2d 1421" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/708/708.F2d.1421.81-7298.html", "author_id": null, "opinion_text": "708 F.2d 1421\n G.I. TRUCKING COMPANY, La Salle Trucking Company, andCalifornia Cartage Company, Petitioners,v.The UNITED STATES of America and the Interstate CommerceCommission, Respondents.\n No. 81-7298.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted June 8, 1982.Decided June 22, 1983.\n \n Donald Murchison, Murchison &amp; Davis, Los Angeles, Cal., Paul F. Sullivan, Washington, D.C., for petitioners.\n Cecelia E. Higgins, I.C.C., Washington, D.C., for respondents.\n On Petition for Review of an Order of the Interstate Commerce Commission.\n Before KENNEDY, POOLE, and REINHARDT, Circuit Judges.\n KENNEDY, Circuit Judge:\n \n \n 1\n Petitioners challenge the grant of a certificate to a competing carrier. The Interstate Commerce Commission granted a certificate to Auto Express Mexicano, a Mexican carrier, to provide service between the Mexican border and San Francisco, Los Angeles, and San Diego. Auto Express has equivalent authority from Mexican authorities to provide service between the border and points in the interior of Mexico. This dual authority will enable it to offer single line service between points in Mexico and the United States without a change of carrier at the border.\n \n \n 2\n Petitioners are American carriers authorized to provide service between the Mexican border and various points in California. They are not authorized to transport goods within Mexico and assert that under Mexican law, non-Mexican carriers cannot obtain such authority. As a result, they cannot offer single line service between points in Mexico and points in the United States.\n \n \n 3\n Petitioners' principal contention is that the Commission erred in failing to consider Mexican nonreciprocity as a relevant factor in its decision to grant an operating certificate to a carrier based in Mexico. They assert that nonreciprocity must necessarily be considered under the Revised Interstate Commerce Act, 49 U.S.C. Sec. 10101, et seq., since the grant of a certificate to a Mexican carrier with through service privileges necessarily and adversely affects their competitive position. Without explaining its reasons and without granting a hearing on the facts of the case, the Commission rejected nonreciprocity as a relevant factor in its determination.\n \n \n 4\n After the Commission action granting the licensing to Auto Express, but before consideration of the petition in this court, three separate departments of the government of the United States, the Department of State, the Department of Commerce, and the Department of Transportation, in a subsequent proceeding, Permisionarios de Express y Carga Common Carrier Application, No. 141313 (Sub-No. 1), requested the Commission to give express consideration to the issue of foreign reciprocity. It appears to be a fair summary to say that the State Department position is that reciprocity must be assured if the standard of public convenience and necessity is to be met; that the Department of Commerce position is that reciprocal licensing is consistent with, if not required by, the Trade Act of 1974, 19 U.S.C. Sec. 2101, et seq., and is also consistent with stated national transportation policy, 49 U.S.C. Sec. 10101; and that the Department of Transportation believes consideration of reciprocity will \"promote competition and efficient transportation service.\" 49 U.S.C. Sec. 10101(a)(2). The Commission thereupon announced it would consider the reciprocity issue in that proceeding. In the instant case, however, the Commission has expressly declined to reopen the matter to consider the reciprocity issue.\n \n \n 5\n We are not required to decide significant questions of statutory interpretation without having the agency's own analysis and interpretation before us. Where there are alternative policies to be chosen to implement a statute, the agency should make the initial determination and articulate the basis for its decision. See 4 K. Davis, Administrative Law Treatise Sec. 22.4 at 95 (2d ed. 1983) (\"[s]everal Supreme Court cases ... may be interpreted to enunciate the basic idea that statutes agencies administer should be interpreted by the agencies before the courts interpret them.\") (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 568, 98 S. Ct. 2505, 2513, 57 L. Ed. 2d 428 (1978)). The agency's position, moreover, must be both discernible and clear, see Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196-97, 61 S. Ct. 845, 853-54, 85 L. Ed. 1271 (1941); see also Niedert Motor Service, Inc. v. United States, 583 F.2d 954, 962 (7th Cir.1978); and failure of the Interstate Commerce Commission to address arguments pertinent to the grant of the certificate or to adequately explain its reasons for its action requires that the Commission's action be set aside. Humboldt Express, Inc. v. ICC, 567 F.2d 1134 (D.C.Cir.1977); see also Pitre Bros. Transfer, Inc. v. United States, 580 F.2d 140 (5th Cir.1978). This analytical framework is a precondition for effective judicial review, especially where the expertise of the agency is useful in explaining the underlying premises for the policies being presented, and is essential if the courts are to approach precision in their task of determining whether the agency is following a reasoned decisionmaking process.\n \n \n 6\n On the record developed in this proceeding to date, we see no basis for the Commission's rejection of the petitioners' argument based on reciprocity. The Commission's position is especially puzzling in view of its announced intention to declare its position in similar applications now pending before it.\n \n \n 7\n Accordingly, we vacate the Commission's grant of a certificate to Auto Express Mexicano. The case is remanded to the Commission for consideration of the foreign reciprocity arguments raised by petitioners and such other questions of law and fact that materially bear upon the issuance of the certificate to the applicant.\n \n \n 8\n VACATED and REMANDED.\n \n ", "ocr": false, "opinion_id": 419673 } ]

[ "576 P.2d 453", "19 Wash. App. 597" ]

[ { "author_str": "Roe", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n19 Wash. App. 597 (1978)\n576 P.2d 453\nTHE STATE OF WASHINGTON, Respondent,\nv.\nTIMOTHY LUNSTRUM, Appellant.\nNo. 2367-3.\nThe Court of Appeals of Washington, Division Three.\nMarch 28, 1978.\nJohn P. Gilreath and Dano, Cone, Fraser &amp; Gilreath, for appellant.\nJoseph Panattoni, Prosecuting Attorney, for respondent.\nROE, J.\nDefendant Timothy Lunstrum appeals from convictions on four counts of first-degree arson, and five counts of second-degree burglary. It is not disputed that he *598 set fire to four separate unoccupied buildings which were used as dwellings. After a trial, he was found guilty. He pleaded guilty to five counts of burglary.\nTwo issues are presented:\n1. Whether the inclusion of the term dwelling (RCW 9A.04.110(7))[1] within the definition of building (RCW 9A.04.110(5))[2] permits the prosecutor unconstitutional discretion to charge either first-degree[3] or second-degree[4] arson on the same set of facts; and\n2. Whether the trial court abused its discretion in sentencing defendant so four of the five burglary terms should run concurrently but the fifth one should run consecutively to the other four.\n[1] With regard to the first issue, any potential for impermissible discretion in the charging of first- or second-degree arson is obviated by the prefatory remarks to RCW *599 9A.04.110 — \"unless a different meaning plainly is required.\" This proviso, as well as RCW 9A.04.020(2),[5] comport with the controlling case law (e.g., State ex rel. Campbell v. Case, 182 Wash. 334, 47 P.2d 24 (1935), Olsen v. Delmore, 48 Wash. 2d 545, 295 P.2d 324 (1956)), so that whenever a person knowingly and maliciously causes a fire or explosion which damages a dwelling, the first-degree arson statute is applicable and supersedes the second-degree arson statute. See State v. Carroll, 81 Wash. 2d 95, 500 P.2d 115 (1970); State v. Collins, 55 Wash. 2d 469, 348 P.2d 214 (1960).\n[2] With regard to the second issue, RCW 9.92.080 invests the trial court with the ultimate authority to determine whether the sentences arising out of a multiple count information shall run concurrently or consecutively. Jansen v. Morris, 87 Wash. 2d 258, 261, 551 P.2d 743 (1976). There is nothing in the record which even intimates that the vested discretion was abused. State v. Harris, 10 Wash. App. 509, 518 P.2d 237 (1974).[6]\nJudgment affirmed.\nMUNSON, C.J., and McINTURFF, J., concur.\nNOTES\n[1] RCW 9A.04.110(7)\n\n\"`Dwelling' means any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging;\"\n[2] RCW 9A.04.110(5)\n\n\"`Building', in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;\" (Italics ours.)\n[3] \"RCW 9A.48.020 Arson in the first degree. (1) A person is guilty of arson in the first degree if he knowingly and maliciously:\n\n\"(a) Causes a fire or explosion which is manifestly dangerous to any human life including firemen; or\n\"(b) Causes a fire or explosion which damages a dwelling; or\n\"(c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime.\n\"(2) Arson in the first degree is a class A felony.\"\n[4] \"RCW 9A.48.030 Arson in the second degree. (1) A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property.\"\n[5] \"RCW 9A.04.020 Purposes — Principles of construction.... (2) The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title.\"\n[6] Although counsel alludes to the defendant's \"mental problems\" he does not challenge the defendant's competency to either stand trial on the arson counts or plead guilty on the burglary counts. Additionally, there is nothing in the record before us which would permit our raising such issues sua sponte.\n\n", "ocr": false, "opinion_id": 2603944 } ]

[ "592 F.2d 8" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/592/592.F2d.8.78-1287.html", "author_id": null, "opinion_text": "592 F.2d 8\n APPLEYARD'S MOTOR TRANSPORTATION CO., INC., Petitioner,andCoastal Tank Lines, Inc. and Gault Transportation, Inc.,Intervening Petitioners,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents,andPetroleum Carriers, Inc., Intervening Respondent.\n No. 78-1287.\n United States Court of Appeals,First Circuit.\n Argued Dec. 4, 1978.Decided Feb. 16, 1979.\n \n Maxwell A. Howell, Washington, D. C., for petitioner.\n \n \n 1\n Gerald B. Fleming, Atty., I. C. C., Washington, D. C., with whom Mark L. Evans, Gen. Counsel, and Frederick W. Read, III, Associate Gen. Counsel, Washington, D. C., were on brief, for respondent, I. C. C.\n \n \n 2\n Robert Lewis Thompson, Atty., Dept. of Justice, Washington, D. C., with whom John H. Shenefield, Asst. Atty. Gen., and Robert B. Nicholson, Asst. Chief, Appellate Section, Antitrust Division, Washington, D. C., were on brief, for respondent, United States.\n \n \n 3\n Dwight L. Koerber, Jr., Washington, D. C., with whom Harry C. Ames, Jr., Washington, D. C., Francis E. Barrett, Jr., Hingham, Mass., and Ames, Hill &amp; Ames, P. C., Washington, D. C., were on brief, for intervening petitioners, Coastal Tank Lines, Inc., and Gault Transportation, Inc.\n \n \n 4\n Lawrence R. Ehrhard, Springfield, Mass., with whom David M. Marshall, and Marshall &amp; Marshall, Springfield, Mass., were on brief, for intervening respondent, Petroleum Carriers, Inc.\n \n \n 5\n Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.\n \n \n 6\n BOWNES, Circuit Judge.\n \n \n 7\n This is an appeal from the granting of a certificate of public convenience and necessity by the ICC authorizing Petroleum Carriers, Inc., to transport petroleum products1 on irregular routes from points in Rhode Island to points in Massachusetts, and from points in Massachusetts to points in New Hampshire. The matter was handled under the Commission's modified procedure.2 Six shippers supported the application and four competing carriers opposed it.3\n \n \n 8\n Review Board No. 1 of the Commission initially denied Petroleum a carrier's application on the ground \"that the evidence fails to establish a need for applicant's proposed service which cannot be met by existing carriers.\" This finding was reversed by Division 1 of the Commission which found that a certificate of public convenience and necessity was justified. The petitioners claim that the decision of the Commission is not supported by substantial evidence and was arbitrary and capricious and, therefore, violated the Administrative Procedure Act. 5 U.S.C. &#167; 706(2)(A), (E).\n \n \n 9\n Our role as a reviewing court is limited. \"The Commission is the guardian of the public interest in determining whether certificates of convenience and necessity shall be granted.\" United States v. Detroit Navigation Co., 326 U.S. 236, 241, 66 S.Ct. 75, 77, 90 L.Ed.2d 38 (1945). It has long been recognized that determination of public convenience and necessity lies within the judgment and discretion of the ICC. ICC v. Parker, 326 U.S. 60, 65, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945); Hilt Truck Line, Inc. v. United States, 532 F.2d 1199, 1201 (8th Cir. 1976). Against this backdrop, we review the findings of the Commission to determine if they were based on substantial evidence and/or were arbitrary and capricious. Substantial evidence has, since Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), been defined as \"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\" For repetition of this same theme, see Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Illinois Central Railroad Co. v. Norfolk &amp; Western Railway Co., 385 U.S. 57, 69, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).\n \n \n 10\n In Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), Reh'g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975), the Court, in applying the arbitrary and capricious standard, stated:\n \n \n 11\n Under the \"arbitrary and capricious\" standard the scope of review is a narrow one. A reviewing court must \"consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment . . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.\" Citizens to Preserve Overton Park v. Volpe, supra, (401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136) at 416, 91 S.Ct. at 824. The agency must articulate a \"rational connection between the facts found and the choice made.\" Burlington Truck Lines v. United States, 371 U.S. 156, 168 (83 S.Ct. 239, 9 L.Ed.2d 207) (1962). While we may not supply a reasoned basis for the agency's action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 (67 S.Ct. 1578, 91 L.Ed. 1995) (1947), we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 (65 S.Ct. 829, 89 L.Ed. 1206) (1945).\n \n \n 12\n We first address the question of whether there was substantial evidence to support the Commission's action. The Commission carefully considered the affidavits of the five supporting shippers which were substantially similar. All of the shippers stated essentially as follows: that they used private carriage for their present needs, that they intended to expand and increase their business, that they were familiar with the operations and equipment of Petroleum, that they wanted to use Petroleum to meet their future needs because of its reliability, schedule flexibility, and excellent equipment and that they were not interested in using the services of any other carrier. The core of the Commission's decision is to be found in the following paragraph.\n \n \n 13\n As noted, shippers for the most part have not utilized the existing service of protestants, and it cannot be said on this record that their existing service is inadequate. However, we note that inadequacy of existing service is not indispensable to a finding of need for the proposed service. Nashua Motor Express, Inc. v. United States, 230 F.Supp. 646, 653 (D.N.H.1964). Furthermore, we cannot ignore the praise expressed by the supporting shippers for the service now provided by applicant within the limited scope of its existing authority. Expansion of a high quality service is certainly consistent with the public convenience and necessity. We do not believe that it would be appropriate to frustrate applicant's apparent willingness and ability to offer its good service to a larger market area. The beneficial effects of additional competition is also another factor to be considered, especially where the commodities sought to be transported are various petroleum products and related to the Nation's continuing energy concerns. Moreover, since most of the involved traffic has been transported in private carriage, we do not believe that protestants will be adversely affected by a grant of authority to an extent contrary to the public interest. We conclude that a grant will, however, enhance the effectiveness and usefulness of applicant's present service to the supporting shippers. On balance, we find that the beneficial effects resulting from a grant of the proposed service outweigh the harm, if any, to protestants.\n \n \n 14\n Given the Commission's acknowledged primacy in deciding what determines public convenience and necessity, we find that there was substantial evidence to anchor the Commission's decision.4\n \n \n 15\n The claim of arbitrary and capricious action, in addition to a general buckshot attack, specifically alleges that the Commission ignored its past precedents as set forth in Pan-American Bus Line Operation, 1 MCC 190 (1936), and Novak Contract Carrier Application, 103 MCC 555 (1967). In Pan-American, the Commission, in what has by now become a hackneyed litany for rebuffed applicants and thwarted protestants, stated:\n \n \n 16\n The question, in substance, is whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.\n \n \n 17\n Id. at 203. This language is a guideline, not a straitjacket. The important thing is the protection and promotion of the public interest, not that of the certificated carriers. Hilt Truck Line, Inc. v. United States, supra, 532 F.2d at 1203. In Bowman Transportation, Inc. v. Arkansas-Best Freight System, supra, 419 U.S. at 298, 95 S.Ct. at 448, the Court made the pertinent observation. \"Our decisions have dispelled any notion that the Commission's primary obligation is the protection of firms holding existing certificates.\"\n \n \n 18\n Petitioners argue, in effect, that, since the Commission found that the existing service was not inadequate, the granting of the application amounts to a disavowal of the principles enunciated in Pan-American. This completely ignores the current case law. In Hilt Truck Line, Inc. v. United States, supra, 532 F.2d at 1203, the court accurately reflected the present state of the law.\n \n \n 19\n In making its determination, the Commission may take into account not only present needs but also future requirements of shippers, and the ability of existing carriers to supply such projected service will not preclude the Commission from granting authority to an applicant. Interstate Commerce Commission v. Parker, supra, 326 U.S. at 70, 65 S.Ct. at 1495, 89 L.Ed. at 2061. See United States v. Dixie Highway Express, Inc., 389 U.S. 409, 411, 88 S.Ct. 539, 540, 19 L.Ed.2d 639, 641 (1967); Schaffer Transportation Co. v. United States, 355 U.S. 83, 90-91, 78 S.Ct. 173, 177, 2 L.Ed.2d 117, 122 (1957).\n \n \n 20\n See also Union Mechling v. United States, 390 F.Supp. 391, 405 (W.D.Pa.1974); Hudson Transit Lines, Inc. v. United States, 314 F.Supp. 197, 201-02 (D.N.J.1970).\n \n \n 21\n In a future needs case such as this, the ICC's judgment is to be accorded great weight. As stated in United States v. Detroit Navigation,supra, 326 U.S. at 241, 66 S.Ct. at 77:\n \n \n 22\n Its function is not only to appraise the facts and to draw inferences from them but also to bring to bear upon the problem an expert judgment and to determine from its analysis of the total situation on which side of the controversy the public interest lies. Its doubt that the public interest will be adequately served if resumption of service is left to existing carriers is entitled to the same respect as its expert judgment on other complicated transportation problems.\n \n \n 23\n While the Commission did not recite or refer explicitly to the holding in Pan-American, we think it requirements were met as viewed in the context of applicable case law and the Commission's statutory duty.5\n \n \n 24\n In Novak, supra, 103 MCC 555, 557, the Commission stated:\n \n \n 25\n It will be seen that the shippers and consignees supporting an application for the transportation of property are asked to \"identify clearly the commodities they ship or receive, the points to or from which their traffic moves, the volume of freight they would tender to applicant, the transportation services now used for moving their traffic, and any deficiencies in existing services.\" This is the minimum showing expected of any applicant seeking a grant of motor carrier authority.\n \n \n 26\n Petitioners claim that this is a binding requirement which the Commission totally ignored in this case. We do not agree. Each of the shippers stated the area of present operation and the area it hoped to include in its future expansion. The argument that the phrase petroleum products is much too broad seems like grasping at a last straw. The petitioners, the applicant, and the shippers all knew what products were to be transported. It would appear to us that a common sense reading of the shippers' affidavits shows that the Novak requirements were met. Novak, like Pan-American, must be viewed through the prism of current case law against the background setting that Congress has entrusted to the ICC the role of carrying out the nation's transportation policy. Schaffer Transportation Co. v. United States, 355 U.S. 83, 87-88, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957). While the Novak standard may not have been strictly followed, we cannot say that the approach taken by the Commission was arbitrary and capricious. The failure of an applicant to fulfill the specific Novak requirements does not, in and of itself, require a reversal of the Commission's ruling. Alleghany Corp. v. United States, 554 F.2d 615, 620 (3d Cir. 1977). In a modified procedure case similar to this, a three-judge court observed that the Novak guidelines were not to be used as procedural hurdles in the decision making process of the Commission and ruled:\n \n \n 27\n Even if the added competition from Moen Truck Line would cause the plaintiff in this action to lose revenues, this in itself would not be sufficient cause for the Commission to deny Moen's application. Mitchell Bros. Truck Lines v. United States, 327 F.Supp. 796, 798 (D.Or.1971); Alexandria Barcroft &amp; Washington Transit Co. v. United States, 103 F.Supp. 607, 609 (E.D.Va.1951); Schaffer Transportation Co. v. United States, 355 U.S. 83, 91, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957); AB&amp;C Transportation Co. Inc. v. United States, 69 F.Supp. 166, 169 (D.Mass.1946).\n \n \n 28\n Twin City Freight, Inc. v. United States, 360 F.Supp. 709, 713-14 (D.Minn.1972). In the instant case, all the shippers stated that it was their intention to use the applicant to meet their future needs, so this is not a situation involving the loss of present revenues. There is no question here of diversion, but, even if there were, \"(N)o carrier is entitled to protection from competition in the continuance of a service that fails to meet a public need, nor, by the same token, should the public be deprived of a new and improved service because it may divert some traffic from other carriers.\" Schaffer Transportation Co. v. United States, supra, 355 U.S. at 91, 78 S.Ct. at 178. This principle was reiterated in United States v. Dixie Highway Express, Inc., 389 U.S. 409, 411-12, 88 S.Ct. 539, 19 L.Ed.2d 639 (1967).\n \n \n 29\n We find that the Commission's decision was based on substantial evidence and was not arbitrary and capricious.\n \n \n 30\n There is one additional matter. By motion filed November 17, 1978, the Commission seeks a remand to correct an obvious error. It had decided to disregard the supporting evidence of a shipper (Sure Oil and Chemical Corp.) because it was no longer in business, but its certificate inadvertently included operations from West Boylston, Massachusetts, to points in New Hampshire which had been supported solely by Sure Oil.\n \n \n 31\n The motion for remand is granted, the decision of the Commission in all other respects is affirmed.\n \n \n \n 1\n Gasoline, aviation fuel, kerosene fuel, and lubricating oils\n \n \n 2\n The interested parties submit evidence by written affidavits with arguments presented only in writing. 49 C.F.R. 1100.43-1100.52\n \n \n 3\n Only three of the protestants have filed briefs. Appleyard Motor Transportation Co., Inc., appeals individually; Coastal Tank Lines, Inc., and Gault Transportation, Inc., have filed a joint brief. The fourth protestant, Robert Zapora, d/b/a Zapora Motor Trans., has not participated in this appeal\n \n \n 4\n On page 26 of the brief of petitioners Coastal Tank Lines and Gault Transportation, the Second Circuit case of Long Island R.R. Co. v. United States, 568 F.2d 254 (1977), is cited as authority for reversing and remanding the Commission because of lack of substantial evidence. A reading of that case reveals that the ICC was upheld, not reversed as petitioners mistakenly assert. The quotation cited in the brief was limited to the findings of the ALJ which the Commission reversed because of lack of substantial evidence, which reversal was upheld by the court. A glaring mistake such as this does not inspire confidence in petitioners' brief\n \n \n 5\n 49 U.S.C. &#167; 307(a):\n Subject to section 310 of this title, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied(.)\n \n \n ", "ocr": false, "opinion_id": 363481 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\07/07-50141.0.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 December 5, 2007\n No. 07-50141\n Conference Calendar Charles R. Fulbruge III\n Clerk\n\nUNITED STATES OF AMERICA\n\n Plaintiff-Appellee\n\nv.\n\nJUAN JOSE PEREZ-OCHOA, also known as Jose Flores-Garcia\n\n Defendant-Appellant\n\n\n Appeal from the United States District Court\n for the Western District of Texas\n USDC No. 2:06-CR-533-ALL\n\n\nBefore JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.\nPER CURIAM:*\n Appealing the Judgment in a Criminal Case, Juan Jose Perez-Ochoa\nraises arguments that are foreclosed by Almendarez-Torres v. United States,\n523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty\nprovision and not a separate criminal offense. United States v.\nPineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug.\n28, 2007) (No. 07-6202). The Government’s motion for summary affirmance is\nGRANTED, and the judgment of the district court is AFFIRMED.\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", "ocr": false, "opinion_id": 55029 } ]

[ "576 P.2d 629", "223 Kan. 679" ]

[ { "author_str": "Prager", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4486, "opinion_text": "\n223 Kan. 679 (1978)\n576 P.2d 629\nNORMA MATLOCK, Appellant,\nv.\nPAUL MATLOCK, Appellee.\nNo. 48,560\nSupreme Court of Kansas.\nOpinion filed April 1, 1978.\nCharles F. Forsyth, of Erie, argued the cause, and was on the brief for the appellant.\nJohn W. White, of Humboldt, argued the cause, and was on the brief for the appellee.\nThe opinion of the court was delivered by\nPRAGER, J.:\nThis is an appeal by the wife in a divorce case from the judgment of the district court upholding and enforcing an antenuptial agreement and from a postjudgment order for child support.\nThe parties were married on November 7, 1975. At that time the defendant-husband, Paul Matlock, was fifty-five years of age and had been married four times previously. He was the owner of a 600-acre farm, machinery, cattle, furniture, and household goods. His net worth was approximately $300,000. He had four adult children by a former marriage. The plaintiff-wife, Norma Matlock, was from Missouri. She was approximately thirty-five years of age and had been married once before. She had two children by the former marriage. At the time of the marriage Norma was a waitress and had worked in that capacity for some period of time. She owned a car and some household goods and was anticipating a settlement from the previous marriage. The nature and amount of this settlement was never brought out in the evidence.\nPrior to the marriage of the parties, Paul and Norma entered into an antenuptial agreement dated November 6, 1975, which was prepared by Paul's attorney, John W. White, of Humboldt, Kansas. Although there was some conflict in the testimony, the trial court found that the agreement was executed on November 6, *680 1975, following a prior meeting two or three days before when the matter was first discussed with White. The antenuptial agreement provided as follows:\n\"ANTENUPTIAL AGREEMENT\n\"THIS AGREEMENT, made this 6th day of November, 1975, between Norma L. Streitmatter of 520 N. Jefferson, Iola, Kansas, party of the first part, Paul Matlock, of R.R. No. 2, Thayer, Kansas, party of the second part, witnesseth:\n\"THAT WHEREAS, said parties have mutually agreed to become husband and wife and a marriage is about to be solemnized between said parties; and whereas, the said Paul Matlock is the owner of certain real estate, notes, mortgages, livestock, farm equipment and other personal property; and whereas, the said Norma L. Streitmatter is the owner of certain other personal property; and whereas, it is mutually desired and agreed by the said parties that the property and estate of each of the said parties as now composed and constituted shall remain separate, and be subject to the sole control and use of its owner as well after the solemnization of said marriage as previous thereto, except as hereinafter stated.\n\"NOW, THEREFORE, it is mutually covenanted and agreed between said parties:\n\"1. That the estate of the said Norma L. Streitmatter shall remain and be her separate property, subject entirely to her individual control and use the same as if she were unmarried; and that the said Paul Matlock shall not acquire by reason of said contemplated marriage, for himself, his heirs, assigns or creditors, any interest in her said property or estate or right to control thereof, nor any interest in the gross income, increase, rents, profits or dividends arising therefrom, excepting as hereinafter provided; that it is further agreed by the said Paul Matlock that any property that the said Norma L. Streitmatter may hereafter acquire or become entitled to by will or descent, shall be owned and held by her as though she acquired it before the solemnization of said marriage; and the said Paul Matlock hereby agrees that in consideration of said contemplated marriage and the covenants of the said Norma L. Streitmatter herein set forth that he will and does waive, release and relinquish unto the said Norma L. Streitmatter all right to the use and control of her separate property and estate and the gross income therefrom, except as hereinbefore provided; and further agrees that the said Norma L. Streitmatter shall have the right at all times to dispose of any part or all of her separate property and estate by deed, will or otherwise, upon her sole signature, hereby ratifying and consenting on his part to any and all such disposition of her said property or estate; or in case any purchaser desires that he join in the execution of any instrument conveying any part of her said separate estate, he will jointly execute the same with her.\n\"2. That the estate of the said Paul Matlock shall remain his separate property, subject entirely to his individual control and use the same as if he were unmarried; and the said Norma L. Streitmatter shall not acquire by reason of said contemplated marriage, for herself, her heirs, assigns or creditors, any interest in his said property or estate; or right to the control thereof or any interest in the gross income, increase, rents, profits or dividends arising therefrom, excepting as hereinafter provided; and it is further agreed by the said Norma L. Streitmatter *681 that any property the said Paul Matlock may hereafter acquire by will or descent, shall be owned and held by him as though he had acquired it before the solemnization of said marriage; and the said Norma L. Streitmatter hereby agrees in consideration of said contemplated marriage and the covenants of the said Paul Matlock herein set forth, that she will and does waive, release and relinquish unto the said Paul Matlock all right to the use and control of his separate property and estate and the gross income therefrom; and further agrees that the said Paul Matlock shall have the right at any time to dispose of any part or all of his separate property or estate by deed, will or otherwise, upon his sole signature, hereby ratifying and consenting on her part to any and all such disposition of his said separate property or estate, or join in proper conveyances upon request. Said waiver includes the right of inheritance.\n\"3. As to the income of the said parties from their personal earnings or growing out of their separate estates, any residue of the income derived from the use of either of said estates or personal earnings of either or both, shall be considered as joint earnings and shall become their property as joint tenants with right of survivorship and the survivor shall become the sole owner thereof in case of the death of either; and any property acquired by either or both out of the income of either or both during said marriage relation shall become likewise joint property with the right of survivorship. Provided, however, that any increment to the separate estate of either by operation of law shall not be considered as income or joint earnings; and Provided further that nothing in this agreement shall relieve Paul Matlock from his obligation to support said Norma L. Streitmatter as his wife, as provided by the laws of the State of Kansas.\n\"4. That each party, in the event of a separation, and/or divorce, shall have no right as against the other by way of claims for support, alimony, attorney fees, costs, or division of property, except as to the jointly held property as anticipated by paragraph 3 hereof.\n\"5. This contract is to be binding on the heirs, assigns and legal representatives of both the parties hereto.\n\"IN WITNESS WHEREOF, the parties hereto have subscribed their names to this agreement in duplicate on the day and date first above written.\"\nThe marriage was of a short duration as difficulties arose between the parties almost from the beginning. The difficulties resulted in a separation of the parties on December 6, 1975, and the filing of a divorce action by Norma Matlock on December 8, 1975. The trial court found the parties to be incompatible and granted a divorce to the parties on that ground. The judgment granting a divorce is not involved on this appeal. Following the filing of the divorce case, Norma Matlock discovered that she was pregnant. The district court made an order for the support of the wife pendente lite.\nAt the trial of the case the primary issue was the validity of the antenuptial agreement. The trial court upheld the agreement and denied Norma alimony or a share of her husband's property. In *682 accordance with the agreement, the court awarded each of the parties his or her separate property. The wife challenged the validity of the antenuptial agreement, contending that the agreement was not fair or understandably made and was the result of fraud and overreaching on the part of her husband. She further contended that the agreement was void as contrary to public policy in that it tended to promote separation and divorce. Following the hearing, the trial court took the matter under advisement and ultimately found that the antenuptial agreement dated November 6, 1975, should be upheld and that the parties were bound by the agreement. The court ordered the attorney fees and costs to be paid by the husband, holding that the provision in paragraph four of the agreement pertaining to attorney fees and costs was invalid.\nOn the appeal Norma Matlock raises the same basic issues which she raised in the trial court. She contends that the trial court erred in finding that the antenuptial agreement was fairly and understandably made and was not the result of fraud or overreaching when the evidence showed that she did not fully understand or have full knowledge of what she was signing and did not have the independent advice of counsel. The issues presented are essentially fact issues which the trial court resolved against the wife. Under established rules of law this court is required to uphold the trial court findings if they are supported by substantial competent evidence. (Ranney v. Ranney, 219 Kan. 428, 548 P.2d 734 [1976].) It would serve no useful purpose to outline in detail the testimony of the parties presented at the trial. Suffice it to say, there was evidence from which the trial court could find that, although the agreement was prepared by the husband's attorney, the wife had ample opportunity to obtain independent legal advice for herself had she chosen to do so since there were at least two separate conferences on the matter over a period of several days. There is evidence to show that at the first meeting the parties discussed the antenuptial agreement and the form that the same should follow. At the second meeting the agreement in completed form was executed and signed by the parties. Norma Matlock herself testified that the agreement was what she wanted and she knew exactly what she was getting when she signed it, that she understood what the agreement was, and that she did not want any property that the defendant had. *683 There is also evidence that prior to the time the agreement was signed Norma Matlock was fully advised of the defendant's financial situation, the nature of his property, and that his net worth was in the neighborhood of $300,000. We have carefully reviewed the record and find substantial competent evidence to support the findings of the trial court that the antenuptial agreement was fairly and understandably made and was not the result of fraud or overreaching.\nThe general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers and to uphold such contracts where they are fairly and understandably made, are just and equitable in their provisions, and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties. (Ranney v. Ranney, supra; In re Estate of Murdock, 213 Kan. 837, 519 P.2d 108 [1974].)\nIn the trial court, and again on this appeal, the wife maintains that the agreement was grossly unfair and tended to promote separation or divorce, contrary to the public policy of this state. In determining whether an antenuptial contract should be sustained, unreasonable inadequacy of a provision for the intended wife, or disproportion of the share she will receive, cannot be concluded from the contract alone. Consideration must be given to the circumstances in the case. As pointed out in Herman v. Goetz, 204 Kan. 91, 460 P.2d 554 (1969):\n\"... Not only is the amount of the husband's property a factor — consideration should be given to the situation of the parties, as compared to each other, their respective property, their family ties and connections, and the whole circumstances leading up to the execution of the contract and their marriage, the question in the end being whether, in view of all the facts, the intended wife was overreached.\" (Syl. ¶ 3.)\nIn the present case the evidence shows clearly that at the time of the marriage the parties should have known exactly their respective situations and what they were getting into. The difference of ages in the parties was approximately twenty years. Each of the parties had been married before and had children by a previous marriage. The husband had been married four times previously. Each of the parties was concerned about his or her *684 children by previous marriages and was interested in seeing that their rights of inheritance were fully protected.\nThe antenuptial agreement in this case, although setting aside to each of the parties his or her separate property, provides that any residue of the income derived from the use of either of their separate estates or personal earnings should be considered as joint earnings and should become the joint property of the parties. Furthermore, the third paragraph of the antenuptial agreement specifically provided that nothing in the agreement shall release the husband from his obligation to support his wife as provided by the laws of the state of Kansas.\nThe marriage presented a challenge to the parties. If the marriage was of short duration, each of the parties would walk out of it with the property he or she had when the marriage was consummated. If the marriage was a success and the couple prospered from their joint efforts, then their joint accumulations could grow and be shared equally. Furthermore, if their affection for each other blossomed, there was nothing to prevent them from revoking their antenuptial agreement by mutual consent. An antenuptial agreement made by parties contemplating marriage may be revoked and canceled by their mutual consent after the marriage, and when that is done, the agreement is no longer effective. (Campbell v. McBurney, 201 Kan. 26, 439 P.2d 133 [1968].)\nThe factual circumstances in this case are similar to those in Dunsworth v. Dunsworth, 148 Kan. 347, 81 P.2d 9 (1938), and Hafer v. Hafer, 33 Kan. 449, 6 P. 537 (1885). We have concluded that the trial court did not err in upholding the antenuptial contract of the parties and in denying alimony or a share of the husband's separate property to the wife.\nThe second issue to be determined on the appeal concerns the amount of child support awarded to the plaintiff following the birth of the child. The judgment of divorce became effective when the journal entry was filed on June 2, 1976. As a part of that decree, the court ordered the defendant to pay plaintiff's medical expenses, including any necessary hospital costs required by her pregnancy including confinement and delivery of the child. The trial court also recognized that further proceedings would be required, if necessary, to provide for the child's care and support. The child was born on June 22, 1976. Some time thereafter *685 plaintiff filed a motion for child support. A hearing was not had on this motion until November 3, 1976, following which an order for support was entered on November 19, 1976. The district court found that the defendant should pay child support in the amount of $150 per month beginning with the month of November 1976. The trial court did not order the defendant to pay child support during the period from the date of birth, June 22, through October of 1976. It was the court's position that it did not have the power to make such an order retroactive. On the appeal the wife complains both as to the amount awarded for child support and also because the district court failed to require defendant to pay any amount for the support of the child for the first five months of his life. We have considered the record and have concluded that the trial court did not abuse its discretion in allowing $150 per month for the support of the infant child. The question of child support is always open and if there is a change of circumstances as the child gets older, the amount of child support can always be adjusted.\nAs to the failure of the trial court to provide child support during the first five months of the child's life, in our judgment the wife has cause to complain. At the time the divorce was granted, the court specifically reserved the question of child support until after the birth of the child. We find nothing in our prior decisions which prohibits the district court from awarding a lump sum to a wife to reimburse her for past expenses incurred in the support of a child. In fact, we have held that such an award for past child support is appropriate in a proper case. (Effland v. Effland, 171 Kan. 657, 237 P.2d 380 [1951].) Here the trial court had the power to order the defendant to pay a lump sum to plaintiff to reimburse her for her past expenses and in our judgment he should have done so. An award of $750.00 to cover child support for the five month period is appropriate.\nFor the reasons set forth above the judgment of the district court is affirmed except that the order for child support is modified and the defendant is ordered to pay plaintiff the total sum of $750.00 as additional child support.\n", "ocr": false, "opinion_id": 2604041 } ]

[ "487 F.2d 1402" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/487/487.F2d.1402.73-1804.html", "author_id": null, "opinion_text": "487 F.2d 1402\n Nawrockiv.Toledo Police Department\n 73-1804\n UNITED STATES COURT OF APPEALS Sixth Circuit\n 12/28/73\n N.D.Ohio\n AFFIRMED\n ", "ocr": false, "opinion_id": 315226 } ]

[ "743 P.2d 1011", "12 Kan. App. 2d 361" ]

[ { "author_str": "Abbott", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n12 Kan. App. 2d 361 (1987)\n743 P.2d 1011\nSTATE OF KANSAS, Appellee,\nv.\nBRUCE M. DEAVOURS, Appellant.\nNo. 60,394\nCourt of Appeals of Kansas.\nOpinion filed October 8, 1987.\nPetition for review denied November 13, 1987.\nTerry Pullman, of Pullman &amp; Hepperly, of Wichita, and Lucille Marino, assistant appellate defender, and Benjamin C. Wood, chief appellate defender, of Topeka, for the appellant.\nMona Furst, assistant district attorney, Clark V. Owens, district attorney, and Robert T. Stephan, attorney general, for the appellee.\nBefore ABBOTT, C.J., DAVIS and SIX, JJ.\nABBOTT, C.J.:\nThis is a direct appeal by defendant, Bruce M. Deavours. Defendant pled guilty to arson (K.S.A. 21-3718) and appeals the trial court's refusal to modify his sentence.\nDefendant was sentenced to imprisonment for three to ten years, the minimum term for a class C felony. K.S.A. 1986 Supp. 21-4501(c). Probation was denied. After the State Reception and Diagnostic Center (SRDC) submitted its report to the trial court, defendant filed a motion to modify his sentence, requesting that the SRDC recommendation of probation be followed. The court refused to modify the sentence by granting probation, and defendant appeals that refusal.\nWe do not have jurisdiction to hear a direct appeal concerning the denial of probation. K.S.A. 1986 Supp. 22-3602(a); State v. Hamilton, 240 Kan. 539, 731 P.2d 863 (1987); State v. Haines. 238 Kan. 478, 712 P.2d 1211 (1986). However, a direct appeal is allowed concerning the sentence imposed. State v. Hamilton, *362 240 Kan. at 540; State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986).\nDefendant has couched his appeal as one from the original sentence and denial of his motion for modification thereof. He was sentenced to the minimum prison term for a class C felony and, under K.S.A. 1986 Supp. 21-4603(3), any modification of sentence must stay within the statutory limits for the offense. Barr v. State, 8 Kan. App. 2d 173, 175, 651 P.2d 975, rev. denied 232 Kan 875 (1982). A sentence can be reduced below the statutory minimum term with a recommendation from the Secretary of Corrections (K.S.A. 1986 Supp. 21-4603[4]), but no such recommendation is present in this case. Absent a recommendation from the Secretary of Corrections, a motion to modify a minimum sentence would necessarily operate as a request for probation. The court's refusal to modify the sentence is a denial of probation from which no direct appeal may be taken under State v. Hamilton, 240 Kan. 539. See State v. Van Cleave, 239 Kan. 117, 123, 716 P.2d 580 (1986), where it was noted that if defendant's appeal from a minimum sentence was an attack on the trial court's failure to grant probation rather than an attack on the sentence, the court would lack jurisdiction.\nDismissed for lack of jurisdiction.\n", "ocr": false, "opinion_id": 2604051 } ]

[ "423 S.E.2d 659", "262 Ga. 616" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4067, "opinion_text": "\n262 Ga. 616 (1992)\n423 S.E.2d 659\nPOLSTON\nv.\nBOOMERSHINE PONTIAC-GMC TRUCK, INC. et al.\nS92Q0580.\nSupreme Court of Georgia.\nDecided December 3, 1992.\nReconsideration Denied December 17, 1992.\nEllerin &amp; Associates, Irwin M. Ellerin, Heidi Koch, Frederic N. Halstrom, for appellant.\nKing &amp; Spalding, Lanny B. Bridgers, Chilton D. Varner, Sandra E. Strippoli, Mark D. Johnson, for appellees.\nHardy Gregory, Jr., Foy R. Devine, James D. Hollingsworth, William S. Stone, Glen M. Darbyshire, John M. Hewson III, amici curiae.\nBENHAM, Justice.\nThis case comes to us as a certified question from the United States Court of Appeals for the Eleventh Circuit. The facts are fully set out in the Eleventh Circuit's opinion, and those pertinent to our consideration are as follows: After receiving numerous severe injuries in a collision between her car and another, Polston sued the driver of the other car, several automobile dealers, and General Motors Corporation (GMC), which manufactured her car. The manufacturer's asserted liability was based on alleged design defects which Polston contended enhanced the injuries she received in the collision. At trial, the U. S. District Court for the Northern District of Georgia ruled that Polston had the burden of showing both the existence and the extent of enhanced injuries, and granted GMC a directed verdict, finding that Polston had failed to present sufficient evidence of either existence or extent so as to present a jury question. The Eleventh Circuit disagreed in part with the District Court's holding, finding that Polston had produced sufficient evidence of the existence of enhanced injury, agreed with the District Court that Polston had not proved the extent of the enhanced injuries, and disagreed with the District Court's assignment of the burden of proof regarding damages. Noting that there is a split of authority on this issue and that Georgia case law does not address it, the Eleventh Circuit certified to this court the following question:\nUnder Georgia law, in a crashworthiness or enhanced injury case, does the plaintiff bear the burden of specifically apportioning damages between the striking driver and the manufacturer *617 or does the burden of apportionment fall on the defendants? In other words, what is the burden of proof on each party in a crashworthiness or enhanced injury case under Georgia law?\nThe split of authority to which the Eleventh Circuit referred consists of two lines of cases, one headed by Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982), and Huddell v. Levin, 537 F2d 726 (3rd Cir. 1976). Under Mitchell, a shifting-of-burden approach is taken wherein the plaintiff has the burden of proving that the defective design of the car was a substantial factor in causing the enhanced injury. Once that burden is borne by the plaintiff, the burden of proof then shifts to the tortfeasors to apportion the damages between them if they wish to do so. Under Huddell, the plaintiff retains the burden of proving not only the existence of enhanced injury, but the extent of the injury caused by the manufacturer's negligence. For the reasons which follow, we find the approach taken in Mitchell to be more consistent with Georgia tort law and to comport more closely with the public policies of this state.\nWe note first in that regard that Mitchell cites Georgia authority for the principle that wrongdoers who each play a substantial role in creating an indivisible harm are treated as joint and several tortfeasors. Id. at 1207, fn. 9. In Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744) (1975), this court affirmed the Court of Appeals' holding that where the acts of two or more tortfeasors join to create a single indivisible injury, i.e., the injury cannot be rationally apportioned between the tortfeasors, the tortfeasors will be treated as joint tortfeasors. Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974). It appears, therefore, that Georgia law had already moved in the direction later taken to its logical conclusion in Mitchell v. Volkswagenwerk, A.G., supra. To take the next step and adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is only to continue the course set in Gilson, supra.\nAnother factor leading us to adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is its consistency with the Restatement Second of Torts, § 433A of which was quoted in Gilson to establish the joint liability of tortfeasors who produce indivisible injuries. Even more pertinent to the present case is § 433B (2), which directly addresses the subject of the Eleventh Circuit's question:\nWhere the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.\n*618 In addition to the fact that the position taken in Mitchell is consistent with the development of Georgia tort law and with the principles of traditional tort law embodied in the Restatement Second of Torts, we note that a considerable number of other jurisdictions throughout the Southeast and throughout the country have, when called upon to decide this question, adopted positions consistent with Mitchell rather than Huddell.[1]\nAlso to be considered is the question of public policy. Adoption of the Huddell position takes away the incentive of automobile manufacturers to design their products in a responsible fashion. As the Supreme Court of Oklahoma noted, \"application of the Huddell standard might impair the promotion of `safer products' design ... by weakening the deterrent value of products action.\" Lee v. Volkswagen of America, 688 P2d 1283, 1288 (S.C. Okla. 1984).\nIn summary, in deciding who should bear the burden of proving which facts in an enhanced injury or crashworthiness case, we find the approach in Mitchell v. Volkswagenwerk, A.G., supra, to be the better approach in terms of honoring this state's own precedent, in terms of respect for traditional principles of tort law, in terms of sound legal reasoning, and in terms of public policy. Accordingly, we answer the question certified to us by the Eleventh Circuit as follows: In an enhanced *619 injury or crashworthiness case, Georgia law places on the plaintiff the burden of proving that a design defect was a substantial factor in producing damages over and above those which were probably caused as a result of the original impact or collision. To the extent that the injuries suffered by the plaintiff are indivisible, the defendants are treated as joint tortfeasors. Once the plaintiff's burden has been borne, the burden of proof shifts to the defendant which wishes to limit its liability to demonstrate a rational basis for apportioning the liability for the injuries.\nQuestion answered. All the Justices concur, except Bell, P. J., Hunt and Fletcher, JJ., who dissent.\nHUNT, Justice, dissenting.\nI respectfully dissent because the majority's opinion is unsupportable. To the extent the majority purports to base its opinion on legal grounds, its analysis is illogical. To the extent it purports to base its decision on public policy, its analysis is equally flawed.\nFirst, Georgia tort law, which is consistent with basic tort law, mandates a result opposite from that reached by the majority. The fundamental defect in the majority's reasoning is its treatment of this case as one involving joint tortfeasors. This is, clearly and simply, not a joint tortfeasor case. All parties agree that the initial tortfeasor, the drunk driver, is liable for all damages flowing from the initial collision,[2] including any which might have been caused by GMC. All parties agree that GMC and the initial tortfeasor are not joint tortfeasors. Rather, the plaintiff's claim against GMC is one of enhancement. All parties agree GMC is only liable to the extent any defect in the design of its car enhanced, or aggravated, the plaintiff's injuries over and above what would have occurred absent the alleged defect.\nBoth Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff'd, 233 Ga. 453 (211 SE2d 744) (1975), and the Restatement 2d of Torts relied on by the majority are completely inapplicable to this case. Those authorities concern the law of joint tortfeasors, which all parties agree is not the situation here. The point of the Court of Appeals opinion in Gilson, affirmed by this court, was to clarify that concert of action is not necessary on the part of joint tortfeasors. In *620 that case, the plaintiff claimed pain and mental suffering resulting from unnecessary medical procedures involving the insertion and removal of a catheter. None of the damages would have occurred but for the negligence of all three defendants involved. Here, however, Polston admits she would have been injured as a result of the drunk driver's negligence alone, and that some of her injuries cannot be attributed to GMC. Gilson addresses the circumstances presented here, and, in fact, requires the plaintiff prove all elements of her claim against GMC:\nIf [two defendants] merely inflict separate wounds, and [plaintiff] survives, a basis for division exists, no matter how difficult the proof may be and the torts are several.\nId. at 325.[3]\nLikewise, the Restatement 2d of Torts, § 433 B, also relied on by the majority, has no applicability here. That section pertains to a debate among multiple tortfeasors to apportion the total harm among themselves. It has no bearing on the plaintiff's burden of proving enhanced injuries. Here there is no apportionment. The drunk driver is responsible for all Polston's injuries, and GMC is liable only for any enhanced injuries.[4]\nTort law generally, and that of our state, require the plaintiff to prove not only the existence and amount of his or her damages, but also a legally attributable causal connection between any act or omission by the defendant and the resulting injury. See Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990). See also Prosser &amp; Keaton on Torts, § 41, p. 269 (5th ed. 1984); Adams &amp; Adams Georgia Law of Torts, §§ 3-1; 15-2 (1989); Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Moreover, Georgia tort law is clear that a defendant is liable only for injuries caused by its acts or omissions. See Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201, 202 (3) (366 SE2d 792) (1988). If the plaintiff cannot prove her enhanced injuries, she has failed to show the alleged defect aggravated, or enhanced her injuries. If she is unable to offer evidence of what would have occurred absent the alleged defects, she simply *621 has not established enhancement. In that case, she has not proved her claim against GMC.\nThe precise rule applicable in a case such as this was stated in Gay v. Piggly Wiggly, 183 Ga. App. 175, 179 (358 SE2d 468) (1987):\n\"`It is true that [the original wrongdoer] could be held liable for the aggravation of the injury caused by the other defendants' negligence, but that liability is not the result of any concept of joint wrongs but is rather the product of the familiar rule that a wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligent conduct of others. Conversely, it would defy reason to hold the other defendants liable for injuries caused by the original wrongdoer which were not the consequences of their own carelessness....'\"\nSimilarly, the correct and guiding principle to decide this case was stated in Knight v. Lowrey, 228 Ga. 452, 456 (185 SE2d 915) (1971) (language on other issues overruled in Mitchell v. Gilson, 233 Ga. 453, 455 (211 SE2d 744) (1975)):\n[I]t would defy reason to hold the [actor] liable for injuries caused by the original wrongdoer which were not the consequence of his own carelessness.\nSecond, the majority's public policy argument, and others proposed in support of the conclusion reached by the majority, prove to be, on any logical analysis, a house of cards. The majority states that its holding promotes auto manufacturers' incentive to design their products in a responsible fashion. However, there are, doubtless, proper claims by plaintiffs — i.e., those where plaintiffs can prove their claims against GMC, and similar auto manufacturers, under Georgia and traditional tort law — which serve, in today's litigious society, as more than adequate incentive for responsible design.\nIn my view, the only rational public policy argument in support of the majority's conclusion would be one based on the concept of insurance since, in effect, the majority's decision, and those of jurisdictions consistent with the majority opinion, makes GMC an insurer of the plaintiff's damages. This was the approach taken by the West Virginia Supreme Court of Appeals in Blankenship v. General Motors Corp., 406 SE2d 781, 784-785 (W. Va. 1991). There, the court, based on economic data, held General Motors responsible for proving what, if any, damages were caused by its negligence: \"General Motors is the largest producer of automobiles in the world ... [and is] already collecting a product liability premium every time it sells a car any where in the world....\" Ironically, in terms of whether the *622 Mitchell or Huddell rule is preferable, the West Virginia Supreme Court agreed that\nthe Huddell standard makes a great deal of sense and, perhaps, it should be the national standard in all crashworthiness cases. But it isn't. Therefore we reject the Huddell standard because West Virginians are not going to pay product liability insurance premiums so that all the residents of [other jurisdictions] ... can collect the benefits.\nThis holding is based on the assumption that the manufacturer has insured itself against risk by the collection of premiums through cost increases in its product, and the burden of proving the extent of a plaintiff's enhanced injuries is a near impossible one. Id. at 784. However, from the record before us, we can make no such assumptions, either as to the economic analysis, or the availability of relevant expert testimony.\nThere is no justification in this case, on legal, or public policy grounds, for requiring the manufacturer to prove an essential element of the plaintiff's case.\nI am authorized to state that Presiding Justice Bell and Justice Fletcher join in this dissent.\nNOTES\n[1] Cases consistent with the Mitchell rule:\n\nCzarnecki v. Volkswagen of America, 837 P2d 1143 (Ariz. App. 1992); Blankenship v. General Motors Corp., 406 SE2d 781 (W.Va. 1991); Doupnik v. General Motors Corp., 225 Cal. App. 3d 849 (275 Cal. Rptr. 715) (3d Dist. 1991); McDowell v. Kawasaki Motors Corp., 799 S.W.2d 854 (Mo. App. 1990) (see also Richardson v. Volkswagenwerk, A.G., 552 FSupp. 73 (W.D. Mo. 1982)); Tafoya v. Sears Roebuck &amp; Co., 884 F2d 1330 (10th Cir. 1989) (Colorado); Valk Manufacturing v. Rangaswamy, 74 Md. App. 304 (537 A2d 622) (1988); General Motors Corp. v. Edwards, 482 S2d 1176 (Ala. S.Ct. 1985); Shipp v. General Motors Corp., 750 F2d 418 (5th Cir. 1985) (Texas); McLeod v. American Motors Corp., 723 F2d 830 (11th Cir. 1984) (Florida); Fouche v. Chrysler Motors Corp., 107 Idaho 701 (692 P2d 345) (1984); Lee v. Volkswagen of America, 688 P2d 1283 (Okla. S.Ct. 1984); Sumnicht v. Toyota Motor Sales, U. S.A., 121 Wis. 2d 338 (360 NW2d 2) (1985); Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982) (Minnesota); Buehler v. Whalen, 70 Ill. 2d 51 (374 NE2d 460) (1977); Chrysler Corp. v. Todorovich, 580 P2d 1123 (Wyo. S.Ct. 1978) (see also Harvey v. General Motors Corp., 873 F2d 1343 (10th Cir. 1989) (Wyoming)); May v. Portland Jeep, 265 Or. 307 (509 P2d 24) (1973); Engberg v. Ford Motor Co., 205 NW2d 104 (S.D. S.Ct. 1973).\nCases consistent with the Huddell rule:\nArmstrong v. Lorino, 580 S2d 528 (La. Ct. App. 1991); Crispin v. Volkswagenwerk, A.G., 248 N.J. Super. 540 (591 A2d 966) (N.J. Super. Ct. App. Div. 1991) (see also Huddell v. Levin, 537 F2d 726 (3d Cir. 1976); Garcia v. Rivera, 160 A.D.2d 274 (553 NYS2d 378) (App. Div. 1st Dept. 1990) (see also Caiazzo v. Volkswagenwerk, A.G., 647 F2d 241 (2d Cir. 1981)); Craigie v. General Motors Corp., 740 FSupp. 353 (E.D. Pa. 1990); Duran v. General Motors Corp., 101 N.M. 742 (688 P2d 779) (N.M. App. 1983); Wernimont v. Intl. Harvester Corp., 309 NW2d 137 (Iowa Ct. App. 1981); Seese v. Volkswagenwerk, A.G., 648 F2d 833 (3d Cir. 1981); Stonehocker v. General Motors Corp., 587 F2d 151 (4th Cir. 1978); Dreisonstok v. Volkswagenwerk, A.G., 489 F2d 1066 (4th Cir. 1974).\n[2] Courts and commentators sometimes have used the term \"second collision\" in addition to \"crashworthiness,\" in discussing this type of case. See generally Levenstan &amp; Lapp, Plaintiff's Burden Of Proving Enhanced Injury In Crashworthiness Cases: A Clash Worthy of Analysis, 38 DePaul Law Rev.55 (1989). In general, \"crashworthiness\" means the protection that a passenger motor vehicle provides its passengers against injury or death as a result of a motor vehicle accident. \"Second collision\" has been used to refer to the collision between a passenger and the interior part of a vehicle after an initial impact, and to ejection cases in which the second collision is between the passenger and the ground. Id. at 56.\n[3] Interestingly, the federal district court judge in this case, Judge Hall, who rejected Polston's argument that Gilson applies here, is the very same judge who authored the Gilson opinion in the Georgia Court of Appeals.\n[4] One commentator has aptly termed the issue presented in this case as one of the \"false burden of proof.\" Hoenig, Resolution of \"Crashworthiness\" Design Claims, 55 St. John's Law Rev., 633, 699 (1981). Hoenig points out that apportionment in this type of case is \"a basic conceptual error,\" Id., in the plaintiff's argument because there is no apportionment between the tortfeasors' responsibilities for her injuries. The correct basis of determining liability is enhancement, and apportionment or divisibility have no bearing here.\n\n", "ocr": false, "opinion_id": 1420696 }, { "author_str": "Benham", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBenham, Justice.\nThis case comes to us as a certified question from the United States Court of Appeals for the Eleventh Circuit. The facts are fully set out in the Eleventh Circuit’s opinion, and those pertinent to our consideration are as follows: After receiving numerous severe injuries in a collision between her car and another, Polston sued the driver of the other car, several automobile dealers, and General Motors Corporation (GMC), which manufactured her car. The manufacturer’s asserted liability was based on alleged design defects which Polston contended enhanced the injuries she received in the collision. At trial, the U. S. District Court for the Northern District of Georgia ruled that Polston had the burden of showing both the existence and the extent of enhanced injuries, and granted GMC a directed verdict, finding that Polston had failed to present sufficient evidence of either existence or extent so as to present a jury question. The Eleventh Circuit disagreed in part with the District Court’s holding, finding that Polston had produced sufficient evidence of the existence of enhanced injury, agreed with the District Court that Polston had not proved the extent of the enhanced injuries, and disagreed with the District Court’s assignment of the burden of proof regarding damages. Noting that there is a split of authority on this issue and that Georgia case law does not address it, the Eleventh Circuit certified to this court the following question:\nUnder Georgia law, in a crashworthiness or enhanced injury case, does the plaintiff bear the burden of specifically apportioning damages between the striking driver and the manu*617facturer or does the burden of apportionment fall on the defendants? In other words, what is the burden of proof on each party in a crashworthiness or enhanced injury case under Georgia law?\nThe split of authority to which the Eleventh Circuit referred consists of two lines of cases, one headed by Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982), and Huddell v. Levin, 537 F2d 726 (3rd Cir. 1976). Under Mitchell, a shifting-of-burden approach is taken wherein the plaintiff has the burden of proving that the defective design of the car was a substantial factor in causing the enhanced injury. Once that burden is borne by the plaintiff, the burden of proof then shifts to the tortfeasors to apportion the damages between them if they wish to do so. Under Huddell, the plaintiff retains the burden of proving not only the existence of enhanced injury, but the extent of the injury caused by the manufacturer’s negligence. For the reasons which follow, we find the approach taken in Mitchell to be more consistent with Georgia tort law and to comport more closely with the public policies of this state.\nWe note first in that regard that Mitchell cites Georgia authority for the principle that wrongdoers who each play a substantial role in creating an indivisible harm are treated as joint and several tortfeasors. Id. at 1207, fn. 9. In Mitchell v. Gilson, 233 Ga. 453 (211 SE2d 744) (1975), this court affirmed the Court of Appeals’ holding that where the acts of two or more tortfeasors join to create a single indivisible injury, i.e., the injury cannot be rationally apportioned between the tortfeasors, the tortfeasors will be treated as joint tortfeasors. Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974). It appears, therefore, that Georgia law had already moved in the direction later taken to its logical conclusion in Mitchell v. Volkswagenwerk, A.G., supra. To take the next step and adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is only to continue the course set in Gilson, supra.\nAnother factor leading us to adopt the rule stated in Mitchell v. Volkswagenwerk, A.G. is its consistency with the Restatement Second of Torts, § 433A of which was quoted in Gilson to establish the joint liability of tortfeasors who produce indivisible injuries. Even more pertinent to the present case is § 433B (2), which directly addresses the subject of the Eleventh Circuit’s question:\nWhere the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such ac*618tor.\nIn addition to the fact that the position taken in Mitchell is consistent with the development of Georgia tort law and with the principles of traditional tort law embodied in the Restatement Second of Torts, we note that a considerable number of other jurisdictions throughout the Southeast and throughout the country have, when called upon to decide this question, adopted positions consistent with Mitchell rather than Huddell.1\nAlso to be considered is the question of public policy. Adoption of the Huddell position takes away the incentive of automobile manufacturers to design their products in a responsible fashion. As the Supreme Court of Oklahoma noted, “application of the Huddell standard might impair the promotion of ‘safer products’ design ... by weakening the deterrent value of products action.” Lee v. Volkswagen of America, 688 P2d 1283, 1288 (S.C. Okla. 1984).\nIn summary, in deciding who should bear the burden of proving which facts in an enhanced injury or crashworthiness case, we find the approach in Mitchell v. Volkswagenwerk, A.G., supra, to be the better approach in terms of honoring this state’s own precedent, in terms of respect for traditional principles of tort law, in terms of sound legal reasoning, and in terms of public policy. Accordingly, we answer the question certified to us by the Eleventh Circuit as follows: In an en*619hanced injury or crashworthiness case, Georgia law places on the plaintiff the burden of proving that a design defect was a substantial factor in producing damages over and above those which were probably caused as a result of the original impact or collision. To the extent that the injuries suffered by the plaintiff are indivisible, the defendants are treated as joint tortfeasors. Once the plaintiff’s burden has been borne, the burden of proof shifts to the defendant which wishes to limit its liability to demonstrate a rational basis for apportioning the liability for the injuries.\n\nQuestion answered.\n\n\nAll the Justices concur, except Bell, P. J., Hunt and Fletcher, JJ., who dissent.\n\n\n Cases consistent with the Mitchell rule:\nCzarnecki v. Volkswagen of America, 837 P2d 1143 (Ariz. App. 1992); Blankenship v. General Motors Corp., 406 SE2d 781 (W.Va. 1991); Doupnik v. General Motors Corp., 225 Cal.App.3d 849 (275 Cal. Rptr. 715) (3d Dist. 1991); McDowell v. Kawasaki Motors Corp., 799 SW2d 854 (Mo. App. 1990) (see also Richardson v. Volkswagenwerk, A.G., 552 FSupp. 73 (W.D. Mo. 1982)); Tafoya v. Sears Roebuck &amp; Co., 884 F2d 1330 (10th Cir. 1989) (Colorado); Valk Manufacturing v. Rangaswamy, 74 Md. App. 304 (537 A2d 622) (1988); General Motors Corp. v. Edwards, 482 S2d 1176 (Ala. S.Ct. 1985); Shipp v. General Motors Corp., 750 F2d 418 (5th Cir. 1985) (Texas); McLeod v. American Motors Corp., 723 F2d 830 (11th Cir. 1984) (Florida); Fouche v. Chrysler Motors Corp., 107 Idaho 701 (692 P2d 345) (1984); Lee v. Volkswagen of America, 688 P2d 1283 (Okla. S.Ct. 1984); Sumnicht v. Toyota Motor Sales, U.S.A., 121 Wis.2d 338 (360 NW2d 2) (1985); Mitchell v. Volkswagenwerk, A.G., 669 F2d 1199 (8th Cir. 1982) (Minnesota); Buehler v. Whalen, 70 Ill.2d 51 (374 NE2d 460) (1977); Chrysler Corp. v. Todorovich, 580 P2d 1123 (Wyo. S.Ct. 1978) (see also Harvey v. General Motors Corp., 873 F2d 1343 (10th Cir. 1989) (Wyoming)); May v. Portland Jeep, 265 Or. 307 (509 P2d 24) (1973); Engberg v. Ford Motor Co., 205 NW2d 104 (S.D. S.Ct. 1973).\nCases consistent with the Huddell rule:\nArmstrong v. Lorino, 580 S2d 528 (La. Ct. App. 1991); Crispin v. Volkswagenwerk, A.G., 248 N.J. Super. 540 (591 A2d 966) (N.J. Super. Ct. App. Div. 1991) (see also Huddell v. Levin, 537 F2d 726 (3d Cir. 1976)); Garcia v. Rivera, 160 A.D.2d 274 (553 NYS2d 378) (App. Div. 1st Dept. 1990) (see also Caiazzo v. Volkswagenwerk, A.G., 647 F2d 241 (2d Cir. 1981)); Craigie v. General Motors Corp., 740 FSupp. 353 (E.D. Pa. 1990); Duran v. General Motors Corp., 101 N.M. 742 (688 P2d 779) (N.M. App. 1983); Wernimont v. Intl. Harvester Corp., 309 NW2d 137 (Iowa Ct. App. 1981); Seese v. Volkswagenwerk, A.G., 648 F2d 833 (3d Cir. 1981); Stonehocker v. General Motors Corp., 587 F2d 151 (4th Cir. 1978); Dreisonstok v. Volkswagenwerk, A.G., 489 F2d 1066 (4th Cir. 1974).\n\n", "ocr": false, "opinion_id": 9626017 }, { "author_str": "Hunt", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHunt, Justice,\ndissenting.\nI respectfully dissent because the majority’s opinion is unsupportable. To the extent the majority purports to base its opinion on legal grounds, its analysis is illogical. To the extent it purports to base its decision on public policy, its analysis is equally flawed.\nFirst, Georgia tort law, which is consistent with basic tort law, mandates a result opposite from that reached by the majority. The fundamental defect in the majority’s reasoning is its treatment of this case as one involving joint tortfeasors. This is, clearly and simply, not a joint tortfeasor case. All parties agree that the initial tortfeasor, the drunk driver, is liable for all damages flowing from the initial collision,2 including any which might have been caused by GMC. All parties agree that GMC and the initial tortfeasor are not joint tortfeasors. Rather, the plaintiff’s claim against GMC is one of enhancement. All parties agree GMC is only liable to the extent any defect in the design of its car enhanced, or aggravated, the plaintiff’s injuries over and above what would have occurred absent the alleged defect.\nBoth Gilson v. Mitchell, 131 Ga. App. 321 (205 SE2d 421) (1974), aff’d, 233 Ga. 453 (211 SE2d 744) (1975), and the Restatement 2d of Torts relied on by the majority are completely inapplicable to this case. Those authorities concern the law of joint tortfeasors, which all parties agree is not the situation here. The point of the Court of Appeals opinion in Gilson, affirmed by this court, was to clarify that concert of action is not necessary on the part of joint tortfeasors. In *620that case, the plaintiff claimed pain and mental suffering resulting from unnecessary medical procedures involving the insertion and removal of a catheter. None of the damages would have occurred but for the negligence of all three defendants involved. Here, however, Polston admits she would have been injured as a result of the drunk driver’s negligence alone, and that some of her injuries cannot be attributed to GMC. Gilson addresses the circumstances presented here, and, in fact, requires the plaintiff prove all elements of her claim against GMC:\nIf [two defendants] merely inflict separate wounds, and [plaintiff] survives, a basis for division exists, no matter how difficult the proof may be, and the torts are several.\nId. at 325.3\nLikewise, the Restatement 2d of Torts, § 433 B, also relied on by the majority, has no applicability here. That section pertains to a debate among multiple tortfeasors to apportion the total harm among themselves. It has no bearing on the plaintiff’s burden of proving enhanced injuries. Here there is no apportionment. The drunk driver is responsible for all Polston’s injuries, and GMC is liable only for any enhanced injuries.4\nTort law generally, and that of our state, require the plaintiff to prove not only the existence and amount of his or her damages, but also a legally attributable causal connection between any act or omission by the defendant and the resulting injury. See Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990). See also Prosser &amp; Keaton on Torts, § 41, p. 269 (5th ed. 1984); Adams &amp; Adams Georgia Law of Torts, §§ 3-1; 15-2 (1989); Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Moreover, Georgia tort law is clear that a defendant is liable only for injuries caused by its acts or omissions. See Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201, 202 (3) (366 SE2d 792) (1988). If the plaintiff cannot prove her enhanced injuries, she has failed to show the alleged defect aggravated, or enhanced her injuries. If she is unable to offer evidence of what would have occurred absent the alleged defects, she simply *621has not established enhancement. In that case, she has not proved her claim against GMC.\nThe precise rule applicable in a case such as this was stated in Gay v. Piggly Wiggly, 183 Ga. App. 175, 179 (358 SE2d 468) (1987):\n“ ‘It is true that [the original wrongdoer] could be held liable for the aggravation of the injury caused by the other defendants’ negligence, but that liability is not the result of any concept of joint wrongs but is rather the product of the familiar rule that a wrongdoer is responsible for the reasonably foreseeable consequences of his tortious act, including the negligent conduct of others. Conversely, it would defy reason to hold the other defendants liable for injuries caused by the original wrongdoer which were not the consequences of their own carelessness. . . . ’”\nSimilarly, the correct and guiding principle to decide this case was stated in Knight v. Lowrey, 228 Ga. 452, 456 (185 SE2d 915) (1971) (language on other issues overruled in Mitchell v. Gilson, 233 Ga. 453, 455 (211 SE2d 744) (1975)):\n[I]t would defy reason to hold the [actor] liable for injuries caused by the original wrongdoer which were not the consequence of his own carelessness.\nSecond, the majority’s public policy argument, and others proposed in support of the conclusion reached by the majority, prove to be, on any logical analysis, a house of cards. The majority states that its holding promotes auto manufacturers’ incentive to design their products in a responsible fashion. However, there are, doubtless, proper claims by plaintiffs — i.e., those where plaintiffs can prove their claims against GMC, and similar auto manufacturers, under Georgia and traditional tort law — which serve, in today’s litigious society, as more than adequate incentive for responsible design.\nIn my view, the only rational public policy argument in support of the majority’s conclusion would be one based on the concept of insurance since, in effect, the majority’s decision, and those of jurisdictions consistent with the majority opinion, makes GMC an insurer of the plaintiff’s damages. This was the approach takeiji by the West Virginia Supreme Court of Appeals in Blankenship v. General Motors Corp., 406 SE2d 781, 784-785 (W. Va. 1991). There, the court, based on economic data, held General Motors responsible for proving what, if any, damages were caused by its negligence: “General Motors is the largest producer of automobiles in the world . . . [and is] already collecting a product liability premium every time it sells a car any where in the world. . . .” Ironically, in terms of whether the *622Mitchell or Huddell rule is preferable, the West Virginia Supreme Court agreed that\nDecided December 3, 1992\nReconsideration denied December 17, 1992.\nEllerin &amp; Associates, Irwin M. Ellerin, Heidi Koch, Frederic N. Halstrom, for appellant.\nKing &amp; Spalding, Lanny B. Bridgers, Chilton D. Varner, Sandra E. Strippoli, Mark D. Johnson, for appellees.\nHardy Gregory, Jr., Foy R. Devine, James D. Hollingsworth, William S. Stone, Glen M. Darbyshire, John M. Hewson III, amici curiae.\nthe Huddell standard makes a great deal of sense and, perhaps, it should be the national standard in all crashworthiness cases. But it isn’t. Therefore we reject the Huddell standard because West Virginians are not going to pay product liability insurance premiums so that all the residents of [other jurisdictions] . . . can collect the benefits.\nThis holding is based on the assumption that the manufacturer has insured itself against risk by the collection of premiums through cost increases in its product, and the burden of proving the extent of a plaintiff’s enhanced injuries is a near impossible one. Id. at 784. However, from the record before us, we can make no such assumptions, either as to the economic analysis, or the availability of relevant expert testimony.\nThere is no justification in this case, on legal, or public policy grounds, for requiring the manufacturer to prove an essential element of the plaintiff’s case.\nI am authorized to state that Presiding Justice Bell and Justice Fletcher join in this dissent.\n\n Courts and commentators sometimes have used the term “second collision” in addition to “crashworthiness,” in discussing this type of case. See generally Levenstan &amp; Lapp, Plaintiff’s Burden Of Proving Enhanced Injury In Crashworthiness Cases: A Clash Worthy of Analysis, 38 DePaul Law Rev. 55 (1989). In general, “crashworthiness” means the protection that a passenger motor vehicle provides its passengers against injury or death as a result of a motor vehicle accident. “Second collision” has been used to refer to the collision between a passenger and the interior part of a vehicle after an initial impact, and to ejection cases in which the second collision is between the passenger and the ground. Id. at 56.\n\n\n Interestingly, the federal district court judge in this case, Judge Hall, who rejected Polston’s argument that Gilson applies here, is the very same judge who authored the Gilson opinion in the Georgia Court of Appeals.\n\n\n One commentator has aptly termed the issue presented in this case as one of the “false burden of proof.” Hoenig, Resolution of \"Crashworthiness\" Design Claims, 55 St. John’s Law Rev., 633, 699 (1981). Hoenig points out that apportionment in this type of case is “a basic conceptual error,” Id., in the plaintiff’s argument because there is no apportionment between the tortfeasors’ responsibilities for her injuries. The correct basis of determining liability is enhancement, and apportionment or divisibility have no bearing here.\n\n", "ocr": false, "opinion_id": 9626018 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 21, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\00/00-20008.cv0.wpd.pdf", "author_id": null, "opinion_text": " REVISED - December 18, 2000\n\n UNITED STATES COURT OF APPEALS\n For the Fifth Circuit\n\n\n\n No. 00-20008\n\n\n\n WILLIAM EDWARD ENGLAND,\n\n Plaintiff-Appellant,\n VERSUS\n\n DEBORAH CAROL ENGLAND,\n\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n For the Southern District of Texas\n\n November 27, 2000\n\nBefore DUHÉ, EMILIO M.. GARZA, and DeMOSS, Circuit Judges.\n\nDUHÉ, Circuit Judge:\n\n This is an expedited appeal of the District Court's denial of\n\na Petition for Return of Children under the Convention on the\n\nCivil Aspects of International Child Abduction (the “Hague\n\nConvention” or “the Convention”). The District Court held that\n\neven though two children were wrongfully removed by their mother\n\nfrom Australia, their country of habitual residence, to the United\n\nStates in violation of the Hague Convention, they need not be\n\nreturned to Australia because return would expose them to grave\n\nrisks of psychological harm and because the older child objects to\n\nbeing returned. For the following reasons we reverse and remand.\n\f BACKGROUND\n\n William and Deborah England (“William” and “Deborah”) have two\n\nchildren: Karina, age thirteen, and Victoria, age four. All parties\n\nare American citizens. The England family lived in Texas until\n\n1997, when they moved to Australia incident to William's job\n\ntransfer there. In June 1999, the Englands left Australia for an\n\nextended overseas vacation. They arrived in the United States in\n\nJuly 1999 for the last leg of their vacation. Their itinerary\n\nscheduled their return to Australia for July 15, 1999. As planned,\n\nWilliam returned to Australia that day. Ostensibly concerned for\n\nthe health of her cancer-stricken father, Deborah remained in the\n\nUnited States. Since, Deborah told her husband, the England girls'\n\nlast chance to see their grandfather was perhaps at hand, Karina\n\nand Victoria remained in the United States with her instead of\n\nreturning to Australia with William as planned.\n\n A few weeks later, Deborah filed for divorce from William in\n\nTexas. Shortly thereafter, she phoned William and advised him that\n\nneither she nor their daughters would be returning to Australia.\n\nAfter Deborah refused William's various requests to return the\n\nchildren, William filed in the District Court a Petition for Return\n\nof Children Under the Hague Convention. After an Australian court\n\ndetermined that Australia was the “habitual residence” of Karina\n\nand Victoria and that their removal from Australia was “wrongful,”\n\nthe District Court heard and denied William's Hague Convention\n\npetition.\n\n 2\n\f The Convention requires that a child wrongfully removed from\n\nher country of habitual residence be returned there upon petition\n\nunless, among other reasons not relevant here, clear and convincing\n\nevidence establishes that a grave risk of psychological harm\n\nattends her return or unless a court elects to heed the wishes of\n\na sufficiently old and mature child who desires not to return. The\n\nDistrict Court, agreeing with the Australian court, held that,\n\nwithin the meaning of the Convention, Karina and Victoria were\n\nwrongfully removed from their place of habitual residence. The\n\nCourt, however, determined that Karina, an adopted child who prior\n\nto her adoption by the Englands had a “turbulent” history in\n\norphanages and foster care and endured “difficult” adoption\n\nproceedings, would face a grave risk of psychological harm if\n\nseparated from her mother or forced to move so soon after re-\n\nsettling in Texas. See England v. England, No. H-99-2715 (S.D.\n\nTex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition\n\nfor Return of Children Under the Hague Convention). The District\n\nCourt also found that – notwithstanding her Attention Deficit\n\nDisorder, learning disabilities, Ritalin use, and emotional\n\nitinerancy (she has had four mothers in her thirteen years of life)\n\n– Karina was sufficiently mature for the Court to credit her desire\n\nto remain with her mother and not return to Australia. The Court\n\ndeclined to separate Victoria from her older sister because “it\n\nwould be psychologically damaging to both girls to be separated\n\nfrom each other during the pendency of the [Englands'] custody\n\n 3\n\fproceedings.” Id. Accordingly, the Court allowed Karina and\n\nVictoria to remain in the United States with their mother.\n\n William argues that the District Court erroneously held that\n\nKarina and Victoria's return to Australia pending the outcome of\n\ncustody proceedings would subject them to grave risks of\n\npsychological harm. He also argues that Karina is not mature\n\nenough for a court appropriately to consider her wishes under the\n\nHague convention.\n\n DISCUSSION\n\n We review the District Court's factual findings for clear\n\nerror and its legal conclusions de novo. Sweatman v. Commercial\n\nUnion Ins. Co., 39 F.3d 594, 600 (5th Cir. 1994).\n\n I. Grave Risk\n\n The District Court's holding that Karina and Victoria need not\n\nreturn to Australia under the terms of the Convention because\n\nreturn would expose them to grave risks of psychological harm was\n\nclearly erroneous because the evidence of these psychological risks\n\nis neither clear nor convincing.\n\n Under Article 12 of the Convention,1 when a child has been\n\n“wrongfully removed or retained,” the “judicial or administrative\n\nauthority of the Contracting State where the child is . . . shall\n\norder the return of the child forthwith.” Convention on the Civil\n\n\n 1\n Both Australia and the United States have signed and\nimplemented the Convention, the latter through the International\nChild Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (1994).\n\n 4\n\fAspects of International Child Abduction, Oct. 25, 1980, art. 12,\n\n51 Fed.Reg. 10493, 10498 (emphasis supplied). Article 13 of the\n\nConvention provides an exception to Article 12's rule of mandatory\n\nreturn in the event of “a grave risk that [the child's] return\n\nwould expose the child to physical or psychological harm or\n\notherwise place the child in an intolerable situation.” Id., art.\n\n13b, 51 Fed.Reg. at 10499. The Convention's implementing\n\nlegislation, the International Child Abduction and Remedies Act\n\n(“ICARA”), requires that a party opposing a child's return prove\n\nthe existence of such a grave risk by clear and convincing\n\nevidence. 42 U.S.C. § 11603 (e)(2)(A) (1994). Even if this\n\n“narrow” exception2 applies, though, a federal court has “and\n\nshould use when appropriate” the discretion to return a child to\n\nhis or her place of habitual residence “if return would further the\n\naims of the Convention.” Friedrich v. Friedrich, 78 F.3d 1060,\n\n1067 (6th Cir. 1996). The Convention's primary aims are to\n\n“restore the pre-abduction status quo and to deter parents from\n\ncrossing borders in search of a more sympathetic court.” Id. at\n\n1063. Accordingly, the Convention prohibits courts considering\n\nConvention petitions from “adjudicating the merits of [the]\n\nunderlying custody dispute[s].” Nunez-Escudero, 58 F.3d at 376\n\n(citations omitted).\n\n\n 2\n See, for example, Nunez-Escudero v. Tice-Menley, 58 F.3d 374,\n376 (8th Cir. 1995); Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir.\n1995).\n\n 5\n\f While admittedly the District Court and not this Court is the\n\nfact-finder, we nonetheless discern nothing in the record\n\nconstituting clear and convincing evidence that return to Australia\n\npending the outcome of custody proceedings there3 would expose\n\nKarina to grave risks of psychological harm. The following is the\n\nwhole of the District Court's findings regarding “grave risk” in\n\nthis context:\n\n “Through Karina's testimony, however, Ms. England has\n established that given Karina's turbulent history in\n orphanages, foster care, and difficult adoption\n proceedings there is a grave risk of psychological harm\n if she should be separated from her mother or have to\n endure another move so soon after re-settling in Houston.\n There are two custody proceedings pending, one divorce\n proceeding in the United States and one in Australia,\n both of which have been temporarily abated pending the\n outcome of this proceeding. If the Court should send\n Karina back to Australia, one court or the other may well\n send her back to the United States after a full\n examination of her best interests. The Court finds that\n such movement back and forth poses a serious threat to\n her psychological welfare.”\n\nEngland v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order\n\ndenying Motion Re-Urging the Petition for Return of Children Under\n\nthe Hague Convention).\n\n Courts considering this issue have uniformly found\n\nconsiderations such as those articulated by the District Court\n\ninapposite to the “grave risk” determination. See, for example,\n\nNunez-Escudero, 58 F.3d at 377 (“The district court incorrectly\n\n\n 3\n A non-divorce custody proceeding in Australia is stayed\npending the outcome of this litigation, as is Deborah's Texas\ndivorce action.\n\n 6\n\ffactored the possible separation of the child from his mother in\n\nassessing whether the return of the child to Mexico constitutes a\n\ngrave risk that his return would expose him to physical or\n\npsychological harm or otherwise place him in an intolerable\n\nsituation”); Friedrich, 78 F.3d at 1067-68 (“Mrs. Friedrich alleges\n\nthat she proved by clear and convincing evidence in the proceedings\n\nbelow that the return of Thomas to Germany would cause him grave\n\npsychological harm. Mrs. Friedrich testified that Thomas has grown\n\nattached to family and friends in Ohio. She also hired an expert\n\npsychologist who testified that returning Thomas to Germany would\n\nbe traumatic and difficult for the child, who was currently happy\n\nand healthy in America with his mother. . . . If we are to take the\n\ninternational obligations of American courts with any degree of\n\nseriousness, the exception to the Hague Convention for grave harm\n\nto the child requires far more evidence than Mrs. Friedrich\n\nprovides. Mrs. Friedrich alleges nothing more than adjustment\n\nproblems that would attend the relocation of most children”); Walsh\n\nv. Walsh, 221 F.3d 204, 220 n.14 (1st Cir. 2000) (“We disregard the\n\narguments that grave risk of harm may be established by the mere\n\nfact that removal would unsettle the children who have now settled\n\nin the United States. That is an inevitable consequence of\n\nremoval”). The District Court's finding that return to Australia\n\nwould expose Karina to a grave risk of psychological harm, then,\n\nwas clearly erroneous.\n\n Since the District Court found that the evidence of grave risk\n\n 7\n\fto Victoria was even less clear and convincing than the evidence of\n\ngrave risk to Karina, see England v. England, No. H-99-2715 (S.D.\n\nTex. Dec. 20, 1999) (order denying Motion Re-Urging the Petition\n\nfor Return of Children Under the Hague Convention) (“ . . . moving\n\nback and forth would not pose the same psychological threat to\n\nVictoria as it would for her sister”), the Court's finding that\n\nreturn threatened Victoria with a grave risk of psychological harm\n\nwas also clearly erroneous.\n\n II. Age and Maturity\n\n The District Court also erred in determining that Karina is\n\nmature enough for the Court appropriately to consider her views\n\nunder the Convention.4 The Convention establishes that a court\n\n“may refuse to order the return of the child if it finds that the\n\nchild objects to being returned and has attained an age and degree\n\nof maturity at which it is appropriate to take account of its\n\nviews.” Convention, art. 13, 51 Fed.Reg. at 10499. The party\n\nopposing the child's return must establish the child's maturity by\n\na preponderance of the evidence.5 42 U.S.C. § 11603(e)(2)(A)\n\n 4\n The dissent comments that we so conclude despite the absence of\n“any case holding that, under the Hague Convention, a 13 year-old\nis just too young as a matter of law to take account of her views.”\nThe dissent’s concern is misplaced. We do not hold that as a\nmatter of law a 13 year-old is not sufficiently mature for her\nviews to be considered. We do hold that, on this record, a 13\nyear-old has not been shown to be mature enough for her views to be\nconsidered. Indeed, the evidence found in the record which is\nrecounted in this opinion points to the opposite conclusion.\n 5\n This burden is salient. The dissent declares that when the\nrecord is examined for evidence regarding Karina’s maturity, it\n\n 8\n\f(1994). Like the grave risk exception, the “age and maturity”\n\nexception is to be applied narrowly. 42 U.S.C. § 11601(a)(4)\n\n(1994); Nicholson v. Nicholson, No. 97-1273-JTM, 1997 WL 446432, at\n\n*3 (D. Kan. July 7, 1997) (“The child objection defense has been\n\nnarrowly construed”).\n\n The Court's findings on this issue are even more limited than\n\nthose on the grave risk exception:\n\n “In addition, Karina has clearly objected to being\n returned to Australia and she is old enough and mature\n enough for the Court to take account of her views. She\n has maintained friendships with classmates here while\n living abroad, she likes it here and her situation has\n stabilized. The Court, in accordance with Karina's\n stated preference, declines to return her to Australia.”\n\nEngland v. England, No. H-99-2715 (S.D. Tex. Dec. 20, 1999) (order\n\ndenying Motion Re-Urging the Petition for Return of Children Under\n\nthe Hague Convention). The Court's findings, while certainly\n\nsensitive to Karina's emotional plight, nevertheless constitute a\n\nnon sequitur. That Karina has maintained her friendships with\n\nchildren in America, prefers America to Australia, and now enjoys\n\na “situation [that] has stabilized” does not establish that she is\n\nmature enough for a court appropriately to consider her views on\n\nwhere she would prefer to live under the Hague Convention. Rather,\n\n\ndiscovered “no testimony by any...witnesses in the record that\nwould raise even a genuine issue as to whether Karina was too young\nor too immature to have her views considered.” This underscores\nthe dissent’s error. To prevail, William England need not show\nthat Karina is “too immature to have her views considered.”\nRather, Deborah England, the party opposing the child’s return to\nher place of habitual residence, must establish Karina’s maturity\nby a preponderance of the evidence. This she has failed to do.\n\n 9\n\fthese findings only establish that Karina prefers to remain in the\n\nUnited States and that some reasons support this preference. If\n\nanything, the preponderance of the evidence in this record suggests\n\nthat Karina is not mature enough for the Court appropriately to\n\ntake account of her views under the age and maturity exception. By\n\nno fault of her own, Karina has had four mothers in twelve years.\n\nShe has been diagnosed with Attention Deficit Disorder, has\n\nlearning disabilities, takes Ritalin regularly, and is, not\n\nsurprisingly, scared and confused by the circumstances producing\n\nthis litigation. In view of this evidence and the narrowness of\n\nthe age and maturity exception to the Convention's rule of\n\nmandatory return, we hold that the District Court erroneously found\n\nKarina mature enough to trigger this exception to the Convention.\n\n\n\n CONCLUSION\n\n We reverse the District Court and remand with instructions\n\nthat the district court order Karina and Victoria returned to\n\nAustralia forthwith pending the outcome of custody proceedings\n\nthere in accordance with the Convention and for such other\n\nproceedings as may be appropriate.\n\n REVERSED and REMANDED with instructions.\n\n\n\n\n 10\n\fDeMOSS, Circuit Judge, dissenting:\n\n\n\n I cannot concur in Part II “Age and Maturity” of the majority\n\nopinion. I write now to set forth the reasons why I believe the\n\ndistrict court’s conclusion as to the applicability of the age and\n\nmaturity exception in Article 13 of the Hague Convention should be\n\naffirmed.\n\n The specific language of this exception in Article 13 reads as\n\nfollows:\n\n The judicial or administrative authority [the\n district court in this case] may also refuse to\n order the return of the child if it finds that the\n child objects to being returned and has attained an\n age and degree of maturity at which it is\n appropriate to take account of its views.\n\nIn her Order of December 20, 1999, Judge Gilmore stated:\n\n In addition, Karina has clearly objected to\n being returned to Australia and she is old enough\n and mature enough for the Court to take account of\n her views. She has maintained friendships with\n classmates here while living abroad, she likes it\n here and her situation has stabilized. The Court,\n in accordance with Karina’s stated preference,\n declines to return her to Australia.\n\nThe language of Judge Gilmore’s Order is a clear and precise\n\nexercise of the discretion vested in her by the express language of\n\nthis exception in Article 13.\n\n I do not find anything in the Convention or in the\n\nimplementing statute passed by the U.S. Congress which speaks to\n\nstandards of review to be applied by our Court in reviewing this\n\ndecision of the district court. We should apply, therefore, our\n\fnormal requirements that give substantial deference to factual\n\nfindings and credibility decisions made by the district court in a\n\nbench trial by requiring that we find that the district court\n\n“clearly erred” in making such factual decisions and credibility\n\nchoices before discounting these views. I assume also that we\n\nwould review de novo legal decisions of the district court.\n\n I think as a reviewing court we need to keep in mind that\n\nJudge Gilmore heard and saw the testimony of Karina in person and\n\nhad the benefit of that person-to-person evaluation in addressing\n\nthe question of whether Karina was sufficiently old enough and\n\nmature enough to make it “appropriate to take account of [her]\n\nviews.” I have read Karina’s testimony, and I saw nothing therein\n\nwhich would lead me to conclude that she is too young or too\n\nimmature “to take account of [her] views.” Furthermore, I saw no\n\ntestimony by any of the other witnesses in the record that would\n\nraise even a genuine issue as to whether Karina was too young or\n\ntoo immature to have her views considered.\n\n From my reading of her testimony, there is no doubt in my mind\n\nthat Karina “objected to being returned to Australia,” and Judge\n\nGilmore so found. I do not see anything in the majority opinion\n\nwhich would indicate that the majority concluded that Judge Gilmore\n\nclearly erred in finding that Karina did in fact object to being\n\nreturned to Australia. So the heart of our debate and discussion\n\nabout the applicability of this exception revolves around the\n\ndetermination as to whether or not Karina has “attained an age and\n\n 12\n\fdegree of maturity” which makes it appropriate to take account of\n\nher objection. There is no question that at the time of her\n\ntestimony in this case Karina was 13 years old. I have looked for\n\nand could not find, and the majority has not cited, any case\n\nholding that, under the Hague Convention, a 13 year-old is just too\n\nyoung as a matter of law to take account of her views. In regard\n\nto age, the Hague Convention itself states that it shall cease to\n\napply to a child who attains the age of 16 years or more. See\n\nArticle 4. If the age and maturity exception of Article 3 is to\n\nhave any meaning at all, it must be available for a child who is\n\nless than 16 years old. The Hague Convention does not fix a\n\nminimum age at which this exception would become inapplicable. The\n\nConvention does recognize that, in states within which different\n\nterritorial units have their own rules of law respecting custody\n\nand children, the laws of those territorial units may be used for\n\ndetermining the applicable law within the Convention. See Articles\n\n31 and 33. In this regard, section 153.008 of the Texas Family\n\nCode states that “If the child is 10 years of age or older, the\n\nchild may, by writing filed with the Court, choose the managing\n\nconservator, subject to the approval of the Court.” While the\n\nchild’s preference as to managing conservator (the person having\n\ncustody) is not controlling, it seems to me that a federal district\n\njudge sitting in Texas should be instructed by this statute that a\n\nchild who is ten years or older is old enough to have his objection\n\n\n 13\n\fconsidered by the Court. I would conclude, therefore, that Karina,\n\nas a 13 year-old, “has attained an age” sufficient to take account\n\nof her views. The majority does not separately address “age” as a\n\nfactor in its decision.\n\n We turn then to the “degree of maturity” element of this\n\nexception. From my reading of the record, I found no witness who\n\ntestified as to any circumstances or events which would lead to a\n\nconclusion that Karina was “immature for her age.” To the\n\ncontrary, the record indicates that Karina was an average student\n\nacademically, maintaining the school grade level commensurate with\n\nher age, and that she was engaged in a variety of sports and\n\nextracurricular activities. The words “degree of maturity” as used\n\nin Article 13 are inherently relative and subjective in their\n\nconcept. But it seems self-evident to me that a “degree of\n\nmaturity” contemplates something less than actual, full, final,\n\ncomplete maturity. For that reason, I recognize that judges\n\nreading the same record (or hearing the original testimony) could\n\ncome to different conclusions on the subject of Karina’s degree of\n\nmaturity. But the conclusions reached by Judge Gilmore on that\n\nsubject are clearly supported by the record. I disagree\n\nspecifically with the evidence that the majority cites as\n\nsupporting its position that Karina is not mature enough to take\n\naccount of her views. In page 872, the majority states: “By no\n\nfault of her own, Karina has had four mothers in twelve years.”\n\nWhile that is factually true, I would interpret it as enhancing\n\n 14\n\fmaturity. She has experienced adversity and rejection and has had\n\nseveral occasions to form an opinion as to the impact on her own\n\nlife of changes in adoptive parents and changes in places of\n\nliving. On that same page, the majority also refers to her\n\ndiagnosis with Attention Deficit Disorder, her learning\n\ndisabilities, and the fact that she takes Ritalin regularly as\n\nevidence indicating that she is immature. There is no expert\n\ntestimony whatsoever in the record which would support a\n\ncorrelation between these circumstances and immaturity. I am\n\nsurprised that the majority is willing to draw these conclusions\n\nwithout the benefit of testimony in the record from a medical\n\ndoctor or psychologist. The impression I got from reading the lay\n\ntestimony in the record is that by taking Ritalin, Karina\n\neffectively overcomes any learning disability related to ADD.\n\nThere is nothing in the record which would compel a conclusion that\n\nKarina evidences immature behavior as the result of taking Ritalin.\n\n Finally, I have to disagree with the majority’s legal\n\nassessment in page 872 that the age and maturity exception is to be\n\nsubjected to some “narrow” interpretation. Nothing in the\n\nConvention itself states that the exceptions set forth in Article\n\n13 shall be “narrowly construed.” As the only authority for its\n\nview, the majority cites to 42 U.S.C. § 11601(a)(4), which is a\n\npart of the Congressional Findings and Declarations which Congress\n\nmade when it adopted the statute implementing the Hague Convention.\n\nIn this text, the word “narrow” is used only as an adjective\n\n 15\n\fmodifying the noun “exception;” and nothing in the remainder of the\n\nstatutory text speaks to the manner in which a court should address\n\nthe task of construing language in the statute. While\n\ncongressional findings may be looked to for purposes of clarifying\n\nan ambiguity in the text of a statute, they should not be used for\n\nthe purpose of inserting into the statute a provision not otherwise\n\naddressed.\n\n For the foregoing reasons, I think Judge Gilmore was on\n\ncompletely solid ground in her decision not to return Karina to\n\nAustralia because of Karina’s objection to being so returned and in\n\nher finding that Karina was of sufficient age and maturity that the\n\ncourt could give recognition to this objection.\n\n Because of her ruling as to Karina, Judge Gilmore had to\n\ndecide what to do about Victoria (the four year-old). As to\n\nVictoria, Judge Gilmore’s Order now before us states the following:\n\n While moving back and forth would not pose the\n same psychological threat to Victoria as it would\n for her sister and she is too young to articulate a\n preference, the Court declines to separate her from\n her older sister and finds that it would be\n psychologically damaging to both girls to be\n separated from each other during the pendency of\n the custody proceedings. Accordingly, Mr.\n England’s Petition is DENIED.\n\nThis case presents us with a special circumstance as to what the\n\ndistrict court should do when there are two children involved, one\n\nsufficiently old and mature to warrant the Court recognizing her\n\nobjection to being returned to Australia and the other too young to\n\narticulate a preference. I have looked and can find nothing in the\n\n 16\n\fHague Convention itself nor in the enabling legislation in the\n\nUnited States Code which speaks to the circumstance of multiple\n\nsiblings being the subject of a demand for return. Given the\n\nsilence of the Hague Convention and the enabling legislation on\n\nthis subject, it seems to me that a district court can and should\n\nexercise its judicial discretion to formulate an applicable rule.\n\nOne approach might be to treat each child as a separate person,\n\napplying the literal language of the Convention to each and\n\ncontemplating that the result may be that one child has to be\n\nreturned and the other does not. To me, that would be a wasteful\n\nand inefficient approach, which leads, in this case, to potential\n\nconflict between the courts of Australia and the courts of the\n\nUnited States as to the terms and conditions of the divorce itself\n\nand, more particularly, the custody questions that would\n\nnecessarily flow therefrom. An alternative approach would be to\n\nrecognize the desirability of a single decree dealing both with the\n\ndivorce and the child custody issues and allow the court before\n\nwhom the Hague petition is pending to make a decision between the\n\ntwo national jurisdictions on the basis of which jurisdiction has\n\nthe greater degree of contact and interest in the resolution of the\n\ndisputes between the parties involved. I think Judge Gilmore was\n\nreaching for this type of solution when she found that it would be\n\npsychologically damaging to both girls for them to be separated\n\nfrom each other during the pendency of the custody proceedings and\n\nthat there was a value to be served by not separating Victoria from\n\n 17\n\fher older sister.\n\n In this particular case, the interest of Australia in deciding\n\nthe controversies is de minimis and the interest of the United\n\nStates in deciding these controversies is overwhelming. The\n\nfollowing facts, which are clearly established by the record in\n\nthis case, support this conclusion:\n\n 1. William, Deborah, Karina, and Victoria are each citizens\n\nof the United States and not of Australia. Each of them carry U.S.\n\npassports.\n\n 2. William and Deborah were married in Houston, Texas,\n\nU.S.A. and not in Australia. During a majority of the time of\n\ntheir marriage they resided in Houston, Texas, U.S.A.\n\n 3. Karina was born in Chile, not Australia, and she was\n\nadopted by William and Deborah pursuant to a court decree entered\n\nin a state court of Texas, U.S.A. At the time of this controversy\n\nshe was 13 years old.\n\n 4. Victoria was born in Houston, Texas, U.S.A and not\n\nAustralia. At the time of this controversy she was four years old.\n\n 5. Both the parents of William and the parents of Deborah\n\n(the grandparents of the children) are citizens of and reside in\n\nthe United States.\n\n 6. William entered Australia pursuant to an Australian\n\ntemporary work visa; Deborah and the two daughters entered and\n\nremained in Australia solely pursuant to visas issued to them as\n\n\n 18\n\fdependents of William. The visas of the two daughters expired in\n\nAugust 1999.\n\n 7. William was employed in Australia by a U.S. entity and\n\nnot an Australian employer.\n\n 8. When William and Deborah left for Australia in 1997, they\n\nowned a home in Houston which they had been living in for four\n\nyears. They also owned other real property in the State of Texas.\n\nThis property would be community property under the laws of Texas.\n\nThey did not sell their home in Houston, and all of the real\n\nproperty remains as jointly owned property to be dealt with in any\n\ndivorce decree.\n\n 9. Prior to their departure from Australia on vacation in\n\nJune 1999, neither William nor Deborah had filed any petition with\n\nany Australian court seeking a divorce or child custody decree. In\n\nfact, neither William nor Deborah could have filed such a petition\n\nfor such relief because at that time they had not separated and\n\nlived apart for 12 months as required by Australian law.\n\n 10. When William and Deborah and their two daughters left\n\nAustralia in June 1999 on a vacation trip home, they did so\n\njointly, freely, and voluntarily. There was no wrongful abduction\n\nor denial of custody rights of any kind as of the time of their\n\ndeparture from Australia.\n\n 11. When he returned to Australia towards the end of July\n\n1999, William agreed at least tacitly to the decision of Deborah to\n\nremain in Houston with the two children.\n\n 19\n\f The foregoing facts are unique to this case and distinguish\n\nthis case from the three cases cited and relied upon by the\n\nmajority in their opinion.6\n\n Under these circumstances, balancing the interests of\n\nAustralia and the interests of the United States, it is self-\n\nevident that the interests of the United States greatly outweigh\n\nthe interests of Australia. Consequently, the decision of Judge\n\nGilmore to decline to return the two daughters to Australia is a\n\nsensible solution to a difficult problem: it avoids potential\n\nconflicts between separate court proceedings; it saves all parties\n\nthe expense of duplicitous court proceedings; and it permits a\n\nquicker resolution of all the parties’ controversies. Therefore,\n\nI would affirm the district court’s decision to decline to return\n\nKarina and Victoria to Australia.\n\n I conclude with some comments about the frightening precedent\n\nthat the majority opinion in this case will set. The net effect of\n\nthe Hague Convention as applied by the majority is to compel the\n\ninitiation of divorce proceedings in foreign lands between American\n\n\n1\n See Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).\nFather, a German citizen, married mother, a United States citizen,\nin Germany. One child born in Germany removed from Germany to\nUnited States when child was two years old; Nunez-Escudero v. Tice-\nMenley, 58 F.3d 374 (8th Cir. 1995). Father, a Mexican citizen,\nmarried mother, a United States citizen, in Mexico. One child born\nin Mexico, removed from Mexico to United States when child was six\nmonths old; Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995). Father,\na Danish citizen, married mother, a United States citizen, in\nSweden. Two children born in Sweden removed from Poland to United\nStates when one was four years old and the other two years old.\n\n 20\n\fcouples who have children and who are overseas because of work\n\nassignments. My guess is that very few American couples are\n\nforewarned about the Hague Convention before they accept work\n\nassignments overseas. When all the players (husband/father,\n\nwife/mother, and children) are American citizens, who have spent\n\nthe large majority of their lives living in the United States,\n\nwhose relatives are back in the United States, who have property in\n\nthe United States, and who voluntarily come back to the United\n\nStates for a visit, it will come as a very disturbing shock to\n\nlearn that they must return to the foreign work country and its\n\ncourts to resolve their marital problems and child custody\n\ndisputes. This is a trap that employers who send their employees\n\noverseas should be certain that the spouses and children of their\n\nemployees have considered. From my reading of the record in this\n\ncase, I am quite certain that Deborah England would have never\n\nconsented to go to Australia with her husband in 1997 if she had\n\nbeen aware of the impact of the Hague Convention on any future\n\nmarital discord while they were in Australia.\n\n For the foregoing reasons, I dissent.\n\n\n\n\n 21\n\f", "ocr": false, "opinion_id": 22746 } ]

[ "65 N.W.2d 76", "245 Iowa 1231" ]

[ { "author_str": "Larson", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4404, "opinion_text": "\n65 N.W.2d 76 (1954)\nSTATE\nv.\nMEEKS.\nNo. 48480.\nSupreme Court of Iowa.\nJune 15, 1954.\nRehearing Denied September 24, 1954.\n*77 James Clyde Meeks, pro se.\nLeo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Richard M. Ackley, County Attorney, Wapello County, Ottumwa, for appellee.\nLARSON, Justice.\nThe defendant James Clyde Meeks, alias L. H. Stone, was indicted on the 10th day of November, 1953, by the Wapello County Grand Jury charged with the crime of uttering a forged instrument with intent to defraud, in violation of Section 718.2 of the 1950 Code of Iowa, I.C.A. The facts are not in great dispute. Defendant had opened a checking account in The Farmers and Merchants Savings Bank of Ottumwa, Iowa, on or about October 15, 1953, and had made deposits of $430 and one withdrawal *78 of $300 prior to October 23, 1953. On the morning of that date he made a second withdrawal by check made payable to cash of $125, leaving a balance in his account of only $5. Just before closing hours on the same day he deposited to his account a check in the amount of $415 which was dated October 21, 1953, made payable to L. H. Stone, drawn on the Burlington Bank and Trust Company of Burlington, Iowa, and purportedly drawn and signed by one W. H. Barton. The receiving teller's suspicions were aroused, and a telephone call to the Burlington bank confirmed the fact that no person by the name of W. H. Barton had an account there. Peace officers were notified and they assembled at the Ottumwa bank the next morning to investigate the matter. At about 9:30 A.M. defendant came to the bank, withdrew $300 in small bills by issuing a check for cash for that sum. After leaving the bank defendant was apprehended and invited to the police station for questioning. From the method of operation he was suspected of being a wanted false check artist. A search of his person revealed that he had some $976 in his pockets and pinned in various places on his underclothing. Among his effects was a key to a locker at the Ottumwa bus depot. The locker contained a grip which was brought to the station and opened in defendant's presence. In addition to clothing it contained various instruments used by a typical check artist and they appear herein as Exhibits P-15 through P-36 inclusive. They will be referred to later. The defendant had on his person a tear gas gun, and he tried to destroy some already-prepared checks and a deposit slip for another Ottumwa bank. These items included a check to Stone from one B. D. Miller for $375 drawn on the Burlington Bank and Trust Company, appearing as Exhibit P-5, a deposit slip for the Fidelity Savings Bank of Ottumwa as Exhibit P-6, and a check drawn for cash on said bank in the sum of $250 as Exhibit P-7. They had not yet been presented at the Fidelity Savings Bank.\nOn the 12th day of November defendant appeared in court for arraignment, and as he was without counsel he was given a copy of the indictment and informed by the court of his right to have counsel appointed for him. He declined, stated he was charged under his true name, and entered his plea of not guilty. The cause was then assigned for trial on November 23, 1953. On November 18, 1953, defendant having failed to obtain counsel was brought before the court, where he stated that if he could not have one Charles Bookin appointed as his counsel, the said Bookin being scheduled to start another specially assigned case at Fairfield at that time, and that \"if he could be furnished with photostatic copies of\" certain checks, he \"wished to conduct his own trial and did not desire the court to appoint any counsel for him.\" The requested copies were furnished defendant, acknowledged by his signature in the record, and the trial opened as scheduled on November 23, 1953.\nDefendant at that time presented a motion for a change of venue and a motion for a continuance, both of which were overruled by the court. The state presented its evidence, and the defendant quite ably defended himself and presented his objections and preserved his exceptions. However, his motion for a directed verdict at the close thereof was overruled. Defendant then did not take the stand nor call any witnesses, but did introduce one Exhibit D-1 which was a photostatic copy of a signature card signed by him at the time he opened the account in the Farmers and Merchants Savings Bank in Ottumwa, Iowa.\nAfter the court had given its instructions, which were not objected to by the defendant, the jury retired and shortly returned a verdict finding the defendant guilty as charged. Defendant's motion for a new trial, as well as a later motion to modify the court's judgment sentencing defendant for an indeterminate period not to exceed ten years in the Iowa State Men's Penitentiary at Fort Madison, Iowa, were overruled, and he is now incarcerated in that institution. He lists 18 assignments of error, and fails for the most part to state propositions and list authorities in his brief *79 and argument, of which the state complains, but we feel under the conditions his contentions are argued with sufficient clarity to warrant and deserve our consideration. Such assignments as we consider of merit we will discuss.\nI. Perhaps defendant's principal contention is found in his 15th and 16th assignments wherein he maintains that the state failed to prove that he uttered a forged check as charged in the indictment. He argues that \"to constitute the offense of `uttering a forged check' the proof must show the check is drawn on an actual account, that the check was written without authority of the person whose name is forged, and, with intent to defraud thereby.\" He reasons that because W. H. Barton, the purported and unknown drawer of the check on the Burlington bank, was not a depositor, the check cannot be classified as a forgery but must be classified as a false check within the meaning of Section 713.3, Code of Iowa 1950, I.C.A. He argues that if the state's evidence is to be believed and it is determined that he wrote the entire $415 check himself including the indorsement, he would be guilty of no worse offense than the false drawing or uttering of a check, and that he may assume any name he wishes, including Stone, Barton or Miller. It may be conceded that the acts done could also have constituted another offense than the one charged by the state, but with that question we are not here concerned. He was charged with the violation of Section 718.2 of the Code of Iowa 1950, I.C.A., which provides as follows:\n\"If any person utter and publish as true any record, process, certificate, deed, will, or any other instrument of writing mentioned in section 718.1, knowing the same to be false, altered, forged, or counterfeited, with intent to defraud, he shall be imprisoned in the penitentiary not more than ten years, or imprisoned in the county jail not exceeding one year, or fined not exceeding one thousand dollars.\"\nForgery has been defined to be the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. State v. Sherwood, 90 Iowa 550, 58 N.W. 911; State v. Van Auken, 98 Iowa 674, 68 N.W. 454. Also see 37 C.J.S., Forgery, § 1, p. 31; 23 Am.Jur. 676, Forgery, § 2.\nWe have also said many times that \"forgery\" and \"uttering a forged instrument\" are separate and distinct crimes. See State v. Solberg, 214 Iowa 333, 242 N.W. 84; State v. Blodgett, 143 Iowa 578, 121 N.W. 685; State v. McCormack, 56 Iowa 585, 9 N.W. 916.\nIt is well settled in most jurisdictions, including Iowa, that the offense of \"forgery\" may be committed even though the name used be an assumed or fictitious one when it is also shown that it was used with the intention to defraud. See 37 C.J.C., Forgery, § 10, p. 39. We so held in McCornack v. Central State Bank, 203 Iowa 833, 211 N.W. 542, 52 A.L.R. 1297, and in American Express Co. v. Peoples Savings Bank, 192 Iowa 366, 181 N.W. 701, stating in effect that the alleged name need not be that of any person in existence to constitute \"forgery\". In this connection, however, the evidence disclosed that one William H. Barton of New London, Iowa, had had an account with the Burlington bank during the years 1937 and 1938, but it was closed at his death in March, 1938. This contention of defendant is best answered, however, by our pronouncement in State v. Sherwood, supra, later quoted with approval in State v. Carter, 222 Iowa 474, at page 477, 269 N.W. 445, at page 447. We said:\n\"`The offense of uttering and publishing is proved by evidence of offering to pass the instrument to another person, declaring or asserting, directly or indirectly, by words or actions, that it is good.'\"\nAlso see State v. Weaver, 149 Iowa 403, 128 N.W. 559, 31 L.R.A.,N.S., 1046; State v. Sherwood, supra; State v. Calkins, 73 Iowa 128, 34 N.W. 777.\nHere then defendant offered to pass and did pass the check for $415 knowing *80 that it was not good, that it was not what it purported to be, namely, an instrument drawn by one person to the order of another, and that it was issued with an intent to defraud, first by obtaining credit and later cash from the bank. Here the defendant obtained $300 cash from the bank by cashing a check on a valueless credit known to be such when the deposit was made.\nII. We said in State v. Weaver, supra, that under this statute, formerly Section 4854, Code of 1897, it is not essential that the instrument be actually transferred to or be accepted by another as genuine, it being sufficient that such instrument be offered as genuine with intent to defraud. Also see State v. Calkins, supra. Thus we see it mattered not that the check had been deposited for collection as contended by the defendant. His later acts of trying to obtain money on the strength of that deposit before in the usual course of trade it could be discovered that it was valueless, was material evidence of the fact that it was offered as genuine with the intent to defraud. In Taylor v. State, 65 Okla. Crim. 432, 88 P.2d 665, the rule is laid down, and we subscribe to it, that when a check is indorsed and deposited in a bank for collection, and the title to the same remains in the depositor, the bank merely acting as an agent for the depositor for the purpose of collection, it has no application to criminal cases, especially where one is charged with uttering and passing a forged instrument, as in the case before us.\nSufficient and competent evidence was introduced by the state upon which the jury could find that the defendant drew the check and signed the name W. H. Barton as maker. The bank officials, knowing the defendant as L. H. Stone, accepted the check for $415 and entered it in his pass book as an instrument which on its face purported to be an order of one person to a bank for the transfer of money to another. It was not what it appeared to be and what it was purported to be. Whether defendant assumes both names or not is immaterial; one of them purported to be another and separate person, and to this extent the signature of that person on the instrument was forgery. It was uttered as a forged instrument and was clearly for the purpose of defrauding the bank.\nIII. Defendant assigns as error the court's acceptance of the testimony of the state's witness M. D. Huffman for the reason that by oversight his name was not indorsed upon the back of the indictment as required by Section 772.3, Code of Iowa 1950, I.C.A., when the oversight was called to the court's attention by defendant's objection, and it appeared that the witness Huffman had been before the Grand Jury and the minutes of his testimony appeared therein, the court ordered the clerk to affix the name of Mr. Huffman on the back of the indictment and also upon the copy in the hands of defendant. This we have held proper, for defendant in no way was taken by surprise or prejudiced by the testimony of one whose testimony appears as minutes attached to the indictment. See State v. Craig, 78 Iowa 637, 43 N.W. 462; State v. Story, 76 Iowa 262, 41 N.W. 12; State v. Bige, 198 Iowa 573, 198 N.W. 510, and cases cited therein. The rule in Iowa as laid down therein is that under Section 772.3, Code of Iowa 1950, I.C.A., when names of witnesses who were examined before the Grand Jury were not indorsed thereon, the failure to so indorse the names was not a ground for excluding their testimony upon the trial of the case, even though perhaps a motion to set aside the indictment might have been good under subsection 2 of Section 776.1 of the Code of Iowa 1950, I.C.A. No such motion was made herein.\nIV. Defendant complains of the court's ruling denying his motion for a continuance offered when the trial opened, the jury had assembled, and the state had announced it was ready to proceed; also in denying his motion for a change of venue. We have repeatedly held that such matters are committed to the sound discretion of the trial court and we will not interfere unless it be shown that the trial court abused its discretion. See State v. Hathaway, 224 Iowa 478, 276 N.W. 207; *81 State v. Papst, 221 Iowa 770, 266 N.W. 498; State v. Pell, 140 Iowa 655, 119 N.W. 154. Section 780.2, Code of 1950, I.C.A., provides that the same rules govern applications for continuance in criminal as in civil cases. Under Rules 182 and 183, Rules of Civil Procedure, 58 I.C.A., continuance may be allowed for any cause not growing out of the fault or negligence of the applicant, and must be supported by affidavit of the party, his agent or attorney, which discloses the names and addresses of desired witnesses, what efforts constituting due diligence were made to secure that testimony, and what is expected to be proven by such testimony. Here the motion merely requested a continuance because of the absence of \"certain witnesses * * * whose name or names and residence are unknown\" to him, that he had inquired by telephone to locate such witness, and that the handwriting on the check in issue was not that of the defendant. We agree with the trial court that the motion was not timely nor adequate, and conclude that there was no abuse by the trial court of its discretion to overrule both this one and the motion for a change of venue. There is nothing shown to indicate any prejudice locally against the defendant herein.\nV. Three of defendant's assigned errors have to do with claimed violation of due process, none of which were raised in the trial below. We have said repeatedly that we will not consider constitutional questions which were not specifically raised in the trial court. State v. Walters, Iowa, 58 N.W.2d 4, and cases cited therein. Martin Bros. Co. v. Fritz, 228 Iowa 482, 292 N.W. 143; State ex rel. Seeburger v. Johnson, 204 Iowa 150, 214 N.W. 594. Defendant complained that he was forced to go to trial without the benefit of counsel. It appears without question in the record that he waived counsel when he discovered Mr. Bookin was not available and that the court would require him to pay his own court-appointed counsel. It was then that he refused counsel and, knowingly and understandingly, elected to conduct his own trial. Defendant of course may waive his right to counsel. State v. Duncan, 233 Iowa 1259, 11 N.W.2d 484; Korf v. Jasper County, 132 Iowa 682, 108 N.W. 1031; 23 C.J.S., Criminal Law, § 979, pp. 316-317. There were no circumstances to show that defendant was misled or denied his rights in this regard, and we find no reversible error in this assignment.\nVI. There was further complaint made as to the relevancy and competency of the testimony of M. D. Huffman. Huffman was qualified as the handwriting expert of the Iowa State Bureau of Investigation. He testified that he was present when the defendant was apprehended, that he interrogated him, and that he had carefully examined the handwriting on state's exhibits P-1, P-2, P-3 and P-4, and had concluded that the same hand had written them all. Exhibit P-1 was the check upon which the charge was based, and P-2, P-3 and P-4 were the withdrawal checks in Stone's account. He further related that the defendant had admitted to him that he had written P-2, P-3 and P-4, and indorsed the name of Stone on P-1. This testimony was corroborated by two other officers. While we note that the testimony of the witness had been concluded and the evidence received before any motion was made to strike it as hearsay, yet we are certain that this was on its merit not hearsay evidence.\nOf course the rule is clear that a defendant may not gamble on an answer to a question and then claim erroneous ruling on a motion to strike after the answer is given. State v. Hughey, 208 Iowa 842, 226 N.W. 371; State v. Slycord, 210 Iowa 1209, 232 N.W. 636; State v. Gasperavich, 231 Iowa 11, 300 N.W. 638; State v. Crouch, 130 Iowa 478, 107 N.W. 173.\nThe testimony of Huffman to the effect that defendant had admitted to him that defendant had written Exhibits P-2, P-3 and P-4, was sufficient to warrant the admission of these exhibits as standards of comparison in connection with the question of the handwriting on Exhibit P-1, the check in question. State v. Debner, 205 Iowa 25, 215 N.W. 721, and cases cited *82 therein. All testimony in regard to handwriting, except in cases where the witness saw the document written, necessarily involves comparison. We believe the standard of comparison here was adequately established and was competent evidence tending to prove that defendant had written the forged check presented to the Farmers and Merchants Savings Bank on October 23, 1953. It is sufficient to satisfy the provisions concerning such evidence. See Section 622.25, Code of Iowa 1950, I.C.A. For a complete and exhaustive opinion relating to opinion evidence, see Grismore v. Consolidated Products Co., 232 Iowa 328, 342, 5 N.W.2d 646, 654, where Judge Bliss said:\n\"We have permitted opinion testimony in many cases on matters with which jurors might have some familiarity but where the witness because of his greater knowledge, experience and familiarity with the subject, might be of help to them.\"\nHere then Huffman's evidence established the standard of comparison as to defendant's genuine writings and, by his opinion and explanation of distinguishing characteristics, also aided the jury in its determination of whether or not defendant wrote the check in question for $415. There was no error in accepting the testimony of this witness.\nVII. Other exhibits were admitted to help the jury identify defendant's writing and for the purpose of showing his intent to defraud the bank in this transaction. Exhibit P-16 was a box of tear gas shells together with two tear gas gun adapters, found in appellant's grip. Exhibits P-17 and P-18 were an envelope and letter together with some advertising matter concerning tear gas guns and equipment. Exhibits P-19, P-20, P-21, P-22, P-23, P-24, P-32 and P-35 were several books of blank checks on various banks and a pass book with the Fidelity Savings Bank of Ottumwa, Iowa, in the name of L. H. Stone. These were also found in appellant's grip. Exhibits P-25, P-27, P-28, P-29 and P-30 were four rubber stamps and an ink pad, one of said stamps being a dating stamp, two of said stamps having names of business firms imprinted thereon, and the fourth being a payroll stamp. Exhibit P-26 was a Plumber's Union Card, the name on which was illegible. Exhibit P-31 was a pass book with the Farmers and Merchants Savings Bank, Ottumwa, Iowa, in the name of L. H. Stone. Exhibit P-33 was a deposit receipt holder from the Plaza Bank, St. Louis, Missouri, Exhibit P-34 was appellant's billfold in which was found Exhibit P-9, a Missouri Operator's License issued to James C. Meeks. And Exhibit P-36 was a receipt book.\nThe test of admissibility of evidence is whether it has a legitimate bearing upon any point in issue, and should not be excluded because it shows or tends to show the commission of another crime. State v. Williams, Iowa, 62 N.W.2d 742; State v. Rand, 238 Iowa 250, 25 N.W.2d 800, 170 A.L.R. 289; State v. Rounds, 216 Iowa 131, 248 N.W. 500; 22 C.J.S., Criminal Law, § 683, pp. 1091-1092; Wigmore on Evidence, Vol. II, p. 36, § 238; 20 Am.Jur. 289, Evidence, § 310. The court refused to admit such exhibits until the state first presented substantial evidence which, if believed by the jury, would connect the defendant with the crime charged. Some objections were raised by the defendant as to the statements of the court to counsel, in effect deferring a final ruling on the acceptance of the exhibits, but we find no error in either the language or propriety of its use by the trial court on the question of admissibility of the exhibits which would amount to reversible error, or prejudice the defendant.\nThere are other assignments, such as a failure to subpoena three witnesses requested by the defendant. They were already under subpoena and were available in the court room, but defendant did not call them. We have reviewed the record carefully and each and every ruling of the court, but find therein no reversible error. We have examined the court's instructions which we find fair and complete. The trial court correctly denied defendant's motion for a directed verdict at the close of the state's testimony, and also defendant's motion for *83 a new trial. There was ample substantial evidence introduced by the state from which the jury, in its province of determining questions of fact, could find that the defendant had uttered and passed the forged check for $415.00 with intent to defraud. This being its determination and no reversible error appearing, the judgment must be affirmed.\nAffirmed.\nAll Justices concur.\n", "ocr": false, "opinion_id": 1634022 } ]

[ "869 F. Supp. 143" ]

[ { "author_str": "Curtin", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 776, "opinion_text": "\n869 F. Supp. 143 (1994)\nJulio F. GIANO, Plaintiff,\nv.\nWalter KELLY, Superintendent, Attica Correctional Facility; Thomas Coughlin III, Commissioner, NYS Department of Correctional Facilities; Hans Walker, 1st Deputy Superintendent, Attica Correctional Facility; Albert Hall, Deputy Sup't of Security, Attica Correctional Facility; J. Kihl, Hearing Officer, Attica Correctional Facility; R. Batherick, Lieutenant, Attica Correctional Facility; Booker, Correctional Officer, Attica Correctional Facility; W. Stranahan, Correctional Officer, Attica Correctional Facility; D. Bates, Correctional Officer, Attica Correctional Facility; R. Reyes, Correctional Officer, Attica Correctional Facility, Defendants.\nNo. 89-CV-727C.\nUnited States District Court, W.D. New York.\nNovember 16, 1994.\n*144 Prisoners' Legal Services (Robert F. Bensing, of counsel), Plattsburgh, NY, for plaintiff.\nG. Oliver Koppell, Atty. Gen. of the State of N.Y. (Douglas S. Cream, Asst. Atty. Gen., of counsel), Buffalo, NY, for defendants.\n\n\n*145 DECISION AND ORDER\nCURTIN, District Judge.\n\nBACKGROUND\nPlaintiff Julio Giano brings a 42 U.S.C. § 1983 action concerning his placement in administrative segregation at the Attica Correctional facility. In a prior order, the court dismissed the first six causes of action on collateral estoppel grounds. Item 71. Defendants Walter Kelly, et al., now seek summary judgment on the ninth and tenth causes of action in the plaintiff's amended complaint. Item 59. The ninth cause of action asserts that the defendants violated the plaintiff's Fourteenth Amendment equal protection rights by keeping him in the more restrictive conditions of administrative segregation than those enjoyed by the general prison population. The tenth cause of action asserts that the defendants violated the plaintiff's Fourteenth Amendment due process rights by failing to provide a meaningful periodic review of the plaintiff's status in administrative segregation. Both parties agree that the seventh and eighth causes of action will be decided at a later date. Item 98 at 1; Item 111 at 4-5.\nPlaintiff now seeks partial summary judgment on both the ninth and tenth causes of action. Defendants oppose plaintiff's motion and cross-move for summary judgment on both causes of action. It is the defendants' position that both causes of action were decided in the prior Article 78 C.P.L.R. proceeding at the state level and therefore cannot be heard by this court due to collateral estoppel. Plaintiff opposes defendants' cross motion on several grounds. First, plaintiff claims that the defendants have not met their burden in showing that these claims received adequate review at the state level. Second, plaintiff asserts that the state court did not address the adequacy of defendants' review process. Third, the fact that Giano was pro se at the state level in itself suggests an inadequate review. Finally, plaintiff claims that the introduction of new evidence in the form of a witness of the assault upon Giano was not considered by the State and warrants the preclusion of collateral estoppel.\n\nFACTS\nA detailed version of the facts surrounding this case can be found in the prior order of this court dated September 16, 1992. Item 71. The following is a brief overview of facts relevant to the court's consideration of the present motion. Plaintiff Julio Giano is a New York State prisoner. After his escape attempt from Sing-Sing, Giano was moved to the Shawangunk Correctional Facility. As punishment for the attempted escape, he was sentenced to five years in the Special Housing Unit. After twenty months and good behavior, Giano was released into the general prison population. Two months later, Giano was stabbed in the back by an unidentified inmate. Giano sustained serious injuries; and after recovering in a local hospital, he was returned to Shawangunk and kept in \"Involuntary Protective Custody\" (\"IPC\") for his protection. Shortly thereafter, on October 6, 1988, he was transferred to the Attica Correctional Facility, where he was placed in the Special Housing Unit (\"SHU\"). On October 9, 1988, Giano wrote a letter to defendant Superintendent Walter Kelly protesting his placement in \"Administrative Segregation\" because he was deprived of many of the privileges that are afforded to prisoners in the general population. Giano also wrote to defendants Kelly and Coughlin protesting this treatment. In response, on October 15, 1988, Giano was given a report made by defendant Bathrick at the request of defendant Hall, stating that he was to remain in the SHU. At the plaintiff's request, a hearing was held on October 20, 1988.\nThe administrative hearing was run by defendant Hearing Officer Kihl. Defendants Coughlin and Kelly and certain inmates at the Shawangunk facility were not called as witnesses despite the request of Giano. Kihl ruled that their testimony was not relevant, and therefore not allowed. Walker, Bathrick, and Hall testified that there were two reasons behind their decision to keep Giano in Administrative Segregation. Item 46, Ex. F, Tr. at 31. First, Giano's history of escape attempts warranted keeping him out of the general population. Second, the specific information regarding the stabbing incident was unknown, and Giano was not willing to *146 volunteer information. The ultimate decision to keep Giano in Administrative Segregation was based upon maintaining safety at the Attica facility. Item 71 at 5.\nAfter exhausting all of his administrative remedies, plaintiff filed an Article 78 C.P.L.R. action in state court on April 4, 1989. The respondents in the action were Commissioner Coughlin and Superintendent Kelly. The plaintiff set forth many of the same factual and constitutional allegations that were before this court in 1992. See Item 71. These allegations include failure to provide a hearing in a timely manner, failure to include witnesses in support of plaintiff, and improper placement in administrative segregation. Further, the State action challenged the constitutionality of Prison Directive No. 4933 as violative of the due process clause of the Fourteenth Amendment. Plaintiff also alleged unfair treatment and compared his treatment to the privileges of an inmate in the general population. The Appellate Division affirmed the decision of Hearing Officer Kihl.\n\nDISCUSSION\n\nI. Collateral Estoppel\nDefendants move to dismiss both the ninth and tenth causes of action by summary judgment on collateral estoppel grounds, asserting that the issues of ultimate fact have already been tried and decided against Giano in state court and cannot be relitigated. A collateral estoppel claim is appropriately decided on summary judgment when, as here, \"[t]here is no dispute as to what occurred at the state-court hearing, or as to what questions were before the court, or as to what issues were necessarily decided.\" Golino v. City of New Haven, 950 F.2d 864, 868 (2d Cir.1991). In determining whether or not an action is collaterally estopped, a New York court must first determine if the issues presented are identical to issues already presented in the prior proceedings. Next, a court must determine if the plaintiff had a \"full and fair opportunity\" to litigate the claim in those proceedings. Schwartz v. Public Admin. of Co. of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). At the present time, this court must again compare the state action and response to the causes of action in question.\n\nA. Equal Protection Claim\nPlaintiff's ninth cause of action asserts that the defendants violated the plaintiff's equal protection rights. By maintaining him in administrative segregation, plaintiff claims that he was unconstitutionally deprived of privileges afforded to prisoners in protective custody. The plaintiff argues that the officials have no rational basis for distinguishing between inmates placed in protective custody for their safety and inmates placed in administrative segregation. Further, plaintiff asserts that the party raising collateral estoppel has the burden to prove that the prior decision \"squarely addressed and specifically decided the issue.\" Khandbar v. Elfenbein, 943 F.2d 244, 248 (2d Cir. 1991). Defendants assert that this claim has already been decided in the state court.\nAlthough the plaintiff did not label his claim in the state proceeding as an equal protection rights violation, his arguments clearly addressed the issue. In plaintiff's Brief For Petitioner-Appellant, claims of discrimination and unequal treatment are discussed in depth. Item 46, Ex. E at 22-36. The plaintiff's main argument addressed the similarity of his treatment to an inmate who is being punished for violating a regulation. Item 46 at 22-26. The discussion involving the disparity of treatment between plaintiff and inmates in the general population addresses the equal rights protection question.\nIn both motions, the plaintiff asserts that defendants discriminated against him by limiting his right to visitors, phone calls, personal property, and commissary as punishment for failing to reveal information surrounding his stabbing. Giano claims that this cause of action does not meet the identity requirement of collateral estoppel, because a comparison of protective custody inmates to inmates in administrative segregation was never made. However, he argues identically that his rights were violated because he was treated differently from other inmates who had not broken any prison regulations. Unlike the authorities he cites, no different test or standard need be applied here to decide *147 his previously litigated issue. Jim Beam Brands Co. v. Beamish &amp; Crawford, Ltd., 937 F.2d 729 (2d Cir.1991); Cullen v. Margiotta, 811 F.2d 698 (2d Cir.1987).\nPlaintiff next asserts that the fact that the state claim was litigated pro se is a crucial factor in determining the applicability of collateral estoppel. Item 115 at 9. Plaintiffs who proceed pro se are entitled to have their arguments held to \"less stringent standards than formal pleadings drafted by lawyers.\" Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972). Giano asserts, however, that since the State and some of the federal action were handled pro se, the court should disallow the application of collateral estoppel. West v. Ruff, 961 F.2d 1064 (2d Cir.1992); Clark v. Department of Correctional Services, 564 F. Supp. 787 (S.D.N.Y. 1983).\nUnlike the plaintiffs in his cited authorities, Giano is an experienced pro se litigator. See item 71 at 12. His papers were fully developed and complete. Moreover, he had a full and fair opportunity to raise his arguments in favor of the equal rights protection claim in the state forum. \"A prior state proceeding, including an Article 78 proceeding, will preclude relitigation of a civil rights claim in a federal court if the state proceeding reached the federal constitutional issues involved.\" Powell v. Ward, 643 F.2d 924, 934 (2d Cir.1980) (citations omitted). An Article 78 proceeding will not automatically preclude litigation even when the same factual circumstances are presented (see, e.g., Davidson v. Capuano, 792 F.2d 275 (2d Cir.1986)), because plaintiffs who prevail can seek damages unavailable in the state forum. In the instant case, however, Giano was unsuccessful in arguing that his constitutional rights were violated and in attempts to relitigate the identical issue.\nAs a result, the plaintiff is collaterally estopped from raising the issue in this court. The defendants' request for summary judgment on the ninth cause of action is granted.\n\nB. Due Process Review\nPlaintiff's tenth cause of action asserts that the defendants failed to provide a meaningful periodic review process that fairly considered Giano's continued placement in administrative segregation. Defendants assert that plaintiff challenged his continued confinement in administrative segregation throughout the state proceedings and, as a result, is collaterally estopped from raising the adequacy of the review process in this court. It is the plaintiff's contention that the state proceeding dealt solely with the hearing itself and violations that occurred during the hearing, and did not address the legitimacy of the review process. Item 115 at 3.\nWhen prison officials are faced with the task of placing and maintaining an inmate in administrative segregation, they must follow Prison Directive 4933. Item 111, Ex. 20. Directive 4933 part C,4 sets forth the review procedure officials must follow, providing for weekly review for the first two months of administrative segregation, and monthly reviews thereafter. Id.\nIn its prior order, this court noted that plaintiff's state claim specifically challenged the constitutionality of Prison Directive 4933, claiming that it violated plaintiff's due process rights. Item 71 at 7. Upon close inspection, plaintiff's constitutional challenge focused on Directive 4933 part C,3[1] which deals specifically with a prisoner's status while in administrative segregation. See Item 46, Ex. C at 27. However, in the current due process claim, plaintiff is unequivocally challenging Prison Directive 4933 part C,4.[2] Certain passages within plaintiff's state filings (Item 46, Ex. C and E) could be interpreted as protesting the fact that he was maintained in administrative segregation, but *148 the record does not clearly support that the review process itself was challenged. Therefore, the plaintiff is not collaterally estopped from bringing the tenth cause of action.\n\nII. The Constitutionality of the Review Process\nPlaintiff claims that he was not afforded adequate due process because the defendants failed to provide for a meaningful review of his status in administrative segregation. As a result, the plaintiff asserts that his Fourteenth Amendment due process rights were violated. In order to address the plaintiff's due process claim, the court must first determine whether the plaintiff had a protected liberty interest in remaining free from administrative segregation. If so, the court must determine if the periodic review of the plaintiff's status in administrative segregation afforded due process.\n\nA. Protected Liberty Interest\n\"Generally, restrictive confinement imposed for administrative reasons does not implicate a liberty interest unless the state, by enacting certain statutory or regulatory measures, creates a liberty interest in remaining in the general prison population.\" Russell v. Coughlin, 910 F.2d 75, 77 (2d Cir.1990) (citing Hewitt v. Helms, 459 U.S. 460, 468-72, 103 S. Ct. 864, 869-72, 74 L. Ed. 2d 675 (1983)). However, a state may choose to create such an interest by using statutory or regulatory \"language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed ..., and that administrative segregation will not occur absent specified substantive predicates—viz., `the need for control,' or `the threat of a serious disturbance.'\" Hewitt, 459 U.S. at 471, 103 S.Ct. at 871. In Wright v. Smith, 21 F.3d 496 (2d Cir.1994), the United States Court of Appeals for the Second Circuit recently noted that words of a mandatory nature do not in themselves create the liberty interest in remaining free of administrative segregation. Rather, the words must be of the sort that channel decision makers in specific directions, not merely guide them.\nPrison Directive 4933 is based upon Title 7 of the Official Compilation of Codes, Rules &amp; Regulations of the State of New York (\"NYCRR\"). Section C,1 of the Prison Directive reads as follows: \"This section applies to inmates assigned involuntarily to SHU as a result of a hearing conducted pursuant to 7 NYCRR, Chapter V, 254, which sets forth specific reasons why administrative segregation is warranted.\" Amended in 1990, NYCRR § 301.4 adds: \"Such hearing shall be conducted within 14 days of an inmate's admission to administrative segregation.\" (Emphasis added.) Section C, 2 states: \"Administrative Segregation admission results from a determination by the facility that the inmates' presence in general population would pose a threat to the safety and security of the facility.\" Finally, Prison Directive 4933 Section C, 4 reads as follows:\nInmates assigned to administrative segregation status shall have such status reviewed every seven days for the first two months, and every 30 days thereafter, by a three-member committee consisting of a representative of the facility executive staff, a security supervisor, and a member of the guidance and counseling staff. The results of such review shall be forwarded, in writing, to the superintendent for final determination.\n(Emphasis added).\nFrom the wording of this Directive, the court is satisfied that a liberty interest in remaining free from administrative segregation does exist. In a similar analysis, the Wright court found that \"New York's regulations specifying the circumstances under which administrative segregation could be imposed sufficiently established mandatory substantive predicates under Helms to create a liberty interest.\" 21 F.3d at 499 (citing Matiyn v. Henderson, 841 F.2d 31 (2d Cir. 1988)). The language within the Directive does not provide prison officials with a choice; rather, \"the language [is] of an unmistakably mandatory character\" which officials must follow, (Hewitt 459 U.S. at 471, 103 S.Ct. at 871), and is \"not merely a matter of guidance....\" Wright, 21 F.3d at 499. Officials must provide a hearing, must set forth reasons for admission, and must provide *149 written periodic reviews for an inmate's continued confinement in administrative segregation.\n\nB. Due Process\nThe next step in the analysis is to determine if the review process meets due process requirements. This court has already determined that the due process concerns surrounding the plaintiff's initial placement in administrative segregation were addressed by the state court. Item 71. Thus, the following section is specifically limited to whether or not the review process mandated by Directive 4933 C,4 is constitutionally adequate.\nIn analyzing the adequacy of the review process, the court must apply the test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976). This analysis weighs three factors.\nFirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.\nId. Due process concerns are limited in the prison context (Wolff v. McDonnell, 418 U.S. 539, 560, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974)), and the decisions of prison administrators should be given a large degree of deference. Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447 (1979). However, \"administrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates.\" Hewitt, 459 U.S. at 477 n. 9, 103 S. Ct. 874 n. 9. Nevertheless, \"prison administrators can rely on `purely subjective evaluations and on predictions of future behavior.'\" Id. at 472, 103 S.Ct. at 871 (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S. Ct. 2460, 2464, 69 L. Ed. 2d 158 (1981)).\nThe plaintiff argues that the defendants did not hold meaningful reviews. Item 98 at 6. It is clear from the Administrative Hearing and the state proceedings that Giano was placed in administrative segregation based upon the three factors discussed earlier: the stabbing incident, the escape risk, and the prevailing conditions at Attica. Item 71, 4-5. However, it is not clear from the records that Giano was maintained in administrative segregation for these reasons. Every written review recommendation referred to incidents in which Giano was involved while at Shawangunk. On all 70 written review forms, the same words appear: \"Inmate was initially placed in Administrative Segregation upon his arrival at this facility from Shawangunk Correctional Facility due to incidents he was involved in Shawangunk that posed a serious threat to the security of that facility or any other facility in which he is housed.\" Item 98, 28-97. Furthermore, the letters written by defendant Coughlin and others in response to the plaintiff do not seem to specifically contemplate Giano's administrative segregation status. Item 111, Exs. 10, 11, 12, 14, 16, 17. Instead, they simply suggest that Giano continue \"efforts toward positive adjustment\" (Ex. 12) and that he would be released when he was no longer considered to be a threat. Id. From the plaintiff's perspective, the duration of his administrative segregation status must have seemed indefinite.\nDefendants contend in their depositions that Giano was placed and maintained in administrative segregation due to the stabbing incident at Shawangunk and a lack of information about those events, Giano's escape record, and the prevailing conditions at the Attica Correctional Facility, all of which made him a security risk. Item 111 at 21. However, shortly after the stabbing incident, another inmate named Melvin Richardson, who had witnessed the event, submitted information to officials at Shawangunk. Item 98 at 4-8. The written review records at Attica do not reflect any investigation into information that may have been developing concerning these events. This is a strange omission when one considers that the stabbing incident was one of the defendants' reasons *150 for maintaining Giano in administrative segregation.\nThe Second Circuit has not yet addressed the nature of due process rights which must be afforded for administrative segregation review. However, Mims v. Shapp, 744 F.2d 946 (3rd Cir.1984), decided by the Third Circuit shortly after Hewitt was announced, is instructive here. Mims involved an inmate named Burton who, while serving a sentence for the murder of a police officer, participated in the killing of a Deputy Warden. Burton subsequently served over five years in administrative segregation and was released only after a court order. Burton brought a civil rights action claiming that his due process rights were violated by his continued confinement in the Behavioral Adjustment Unit (\"BAU\").\nAfter determining that a liberty interest in remaining free of administrative segregation did exist, the Mims court applied the due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976), and determined that both the governmental and private interests at stake were high. The crucial governmental interest in maintaining prison safety was balanced against Burton's potentially limitless stay in administrative segregation. Id. Acknowledging the high degree of deference that should be afforded to prison authorities, the court recognized that:\nthe governmental interest involved in a good faith decision to subject a prisoner to administrative segregation may fluctuate with the passage of time and change of circumstances. The validity of the government's interest in prison safety and security as a basis for restricting the liberty rights of an inmate subsists only as long as the inmate continues to pose a safety or security risk....\nTo insure that periodic review does not become simply a sham, the content and substance of that review must be scrutinized under the illumination of the fourteenth amendment.\nId. at 953-54. The Mims court scrutinized the review and found that it was substantial enough to have afforded Burton adequate due process. The court concluded that \"the periodic review employed by [the officials], which relied upon their subjective evaluations of Burton, comported with minimum constitutional standards.\" Id. at 954.\nSimilar to the procedure in Mims, Prison Directive 4933 C, 4 requires weekly review for the first two months, and reviews every thirty days thereafter. As in Mims, both the governmental interest in maintaining prison safety and Giano's private interest in remaining in the general population are high. As noted earlier, maintaining prison safety is of the utmost importance. However, Giano's interest in remaining free of the restrictive conditions of administrative segregation is equally compelling. In order to justify an inmate's continued confinement in administrative segregation, prison officials must be prepared to offer evidence that the periodic reviews held are substantive and legitimate, not merely a \"sham.\"\nThe defendants argue that Giano was given weekly reviews for the entire length of his confinement, more than required by the Directive. Item 111 at 21. However, simply because reviews are held on a weekly basis does not ensure that the reviews are meaningful. Defendants are correct in asserting that Hewitt requires only an informal review. Under federal and state law, an inmate is not required to have the dates of his reviews, the decision of the reviews, the identity of the reviewers, or information regarding what would need to change in order to be released. Id. at 22. Defendants are also correct in asserting that subjective evaluations of an inmate are acceptable. Hewitt, 459 U.S. at 472, 103 S.Ct. at 871. Despite the fact that subjective evaluations can be used, the Supreme Court has suggested that a governmental official is required to substantiate a decision based upon subjectivity. Id. at 477 n. 9, 103 S.Ct. at 874 n. 9.\nFrom the depositions of the defendants, it is clear that they cannot recall if the officials at Shawangunk were contacted to gather information regarding the stabbing. Item 111, Ex. 21, Walker deposition at 10, Hall deposition at 23, Ex. 5, Ex. 6, Kelly deposition at 14. While it is possible that the reviewers at Attica received this information and decided to keep Giano in administrative segregation *151 for the other two reasons cited, the written review records do not illustrate an investigation into the events or any documented change in the reasoning behind Giano's continued confinement. \"The validity of the government's interest in prison safety and security as a basis for restricting the liberty rights of an inmate subsists only as long as the inmate continues to pose a safety or security risk.\" Mims, 744 F.2d at 953. The record in this case does not clearly reflect that the defendants carefully considered Giano's status.\nAs plaintiff's counsel asserted during oral argument, the defendants' failure to provide a meaningful review became more onerous as Giano's length of confinement increased. Two years after the Third Circuit decided Mims, it ruled that a plaintiff who remained in a restricted housing unit for a full year with no more than a rote review was denied due process, finding that:\n[O]ver time reasons which would have justified [the plaintiff's] early detention in administrative custody were applied in a rote fashion in later review when experience should have led officials to let [the plaintiff] into the general population.... Due process was violated because the monthly reviews ... were perfunctory, thus denying [the plaintiff] the most fundamental right of due process: a meaningful opportunity to be heard. See Parratt v. Taylor, 451 U.S. 527, 540, 101 S. Ct. 1908, 1915, 68 L. Ed. 2d 420 (1981).\nSourbeer v. Robinson, 791 F.2d 1094, 1101 (3rd Cir.1986). The court went on to cite Mims with approval: \"To insure that periodic review does not become simply a sham, the content and substance of that review must be scrutinized under the illumination of the fourteenth amendment.\" 791 F.2d at 1101.\nSeveral things could have been done that would have illustrated that the defendants genuinely contemplated Giano's continued confinement without placing an undue burden upon the government. Mathews, 424 U.S. at 335, 96 S.Ct. at 903. For example, inmates in disciplinary segregation status are provided with information regarding the reasons for and the length of their confinement. 7 NYCRR 254.7. Giano could have been given this information. In addition, Giano could have been informed of the dates and results of his reviews. Furthermore, Giano could have been informed of what he needed to do to effectuate his efforts toward positive adjustment. Finally, after a specified period of time, perhaps Giano could have been given an opportunity to present information that would have shown that he is no longer a threat to the facility. If some or all of these suggestions are utilized, the Supreme Court's concern of administrative segregation being a pretext for indefinite confinement could be alleviated.\n\nIII. Qualified Immunity\nDefendants argue that even if this court found the review process unconstitutional, they are entitled to qualified immunity. \"The doctrine of qualified immunity shields state officials from liability where they did not violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'\" Wright, 21 F.3d at 500 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). The question before the court is whether or not the officials were sufficiently guided so that they could have objectively known that their actions in reviewing administrative segregation status violated the plaintiff's due process rights.\nThe Wright Court held that:\nIn determining whether a right was clearly established at the time the defendants acted, a court should consider:\n(1) whether the right in question was defined with \"reasonable specificity\"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.\n21 F.3d at 500 (citations omitted). There is no question that the right to due process is a `clearly established right.' However, there has been no case law in the Supreme Court or the Second Circuit that specifically addresses *152 the nature of due process rights that surround the review of an inmate's status in administrative segregation.\nGiano's placement and continued confinement in administrative segregation were based on the three factors discussed earlier: the stabbing incident, the escape record, and the conditions at Attica. Item 111 at 21. The weekly written review reports never referred to the reasons nor showed that there was any attempt to reevaluate Giano's status. The depositions of the reviewers do not substantially refute the impression given by these reports that Giano's continued confinement was renewed at each review without any type of reevaluation of the evidence against him.\nAt the time of Giano's segregation in 1989-90, Hewitt had established that a liberty interest exists in remaining free of administrative segregation. Matiyn, decided in 1988, had established that New York's regulations created a liberty interest under Hewitt. While Hewitt warned that \"administrative segregation may not be used as a pretext for indefinite confinement of an inmate\" (459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9), defendants argue that prison officials were only required to \"engage in some sort of periodic review of the confinement of such inmates. This review will not necessarily require that prison officials permit the submission of any additional evidence or statements.\" Id. Defendants assert that Hewitt did not clearly establish what the content of the reviews should be, nor what should be recorded in the written review process.\nGiano responds that he was denied due process because the defendants failed to provide a well-recognized right to meaningful review. Defendants correctly maintain that the Second Circuit has not yet addressed the question of what constitutes meaningful review of continued confinement in administrative segregation and that the New York State procedure would be facially adequate in any circuit which has looked at the question. See, e.g. Sourbeer, 791 F.2d 1094 (3rd Cir. 1986); Sheley v. Dugger, 833 F.2d 1420 (11 Cir.1987); Clark v. Brewer, 776 F.2d 226 (8th Cir.1985). However, a facially adequate procedure can fail to afford due process if it is not \"granted at a meaningful time and in a meaningful manner.\" Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965). While defendants argue that the plaintiff has made no factual showing of a lack of good faith or pretextuality, the court finds sufficient documentation on the record to create a dispute regarding the nature and adequacy of the review of the Giano's continued administrative segregation to deny summary judgment.\n\nCONCLUSION\nThe defendants' motion for partial summary judgment to dismiss plaintiff Julio Giano's ninth cause of action is granted. Giano's equal rights protection claim is collaterally estopped because it was tried and decided in the state court. However, the tenth cause of action alleging a denial of plaintiff's due process right to a meaningful review of his continued confinement in administrative segregation was not previously litigated. The evidence on the record shows a genuine issue of fact concerning the adequacy of the review process as applied to the plaintiff. While the constitutional parameters of this process have not been defined by controlling authority, the right to a meaningful review had been clearly established prior to the events in this lawsuit. Accordingly, the defendants' motion for summary judgment on Giano's tenth cause of action based on collateral estoppel and qualified immunity is denied.\nSo ordered.\nNOTES\n[1] C, 3 states that: \"When housed in SHU, Administrative Segregation inmates will be subject to the same rules and regulations as those disciplinary inmates who have completed 30 days of satisfactory adjustment.\"\n[2] C, 4 states that: \"Inmates assigned to Administrative Segregation Status shall have such status reviewed every 7 days for the first two months and every 30 days thereafter by a three-member committee consisting of a representative of the facility Executive Staff, a Security Supervisor, and a member of the Guidance and Counseling staff. The results of such review shall be forwarded, in writing to the Superintendent for final determination.\"\n\n", "ocr": false, "opinion_id": 1495590 } ]

[ "743 P.2d 959", "154 Ariz. 450" ]

[ { "author_str": "Hathaway", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6209, "opinion_text": "\n154 Ariz. 450 (1987)\n743 P.2d 959\nIsidro VALLES, Plaintiff/Appellant,\nv.\nARIZONA BOARD OF REGENTS, Defendants/Appellees.\nNo. 2 CA-CV 87-160.\nCourt of Appeals of Arizona, Division 2, Department A.\nSeptember 10, 1987.\nSmith &amp; Curtis by David W. Curtis, Phoenix, for plaintiff/appellant.\nOffice of the General Counsel, Arizona State University by Mary C. Stevens, Tempe, Robert K. Corbin, Atty. Gen. by A. Glenn Reesing, Phoenix, for defendants/appellees.\nOPINION\nHATHAWAY, Judge.\nThis appeal is taken from the trial court's granting of summary judgment in a breach of contract and wrongful discharge *451 case. In reviewing the granting of summary judgment, we view the facts in the light most favorable to appellant. Transamerica Insurance Group v. Meere, 143 Ariz. 351, 694 P.2d 181 (1984).\nAppellant was employed by Arizona State University (ASU) in the Office of Student Financial Assistance (the Office). He was a classified staff employee filling a position as Financial Aid Officer II. In June 1981, the United States Department of Education conducted an on-site review of the Office. As a result of this review, ASU was informed that serious administrative and organizational problems existed which required immediate attention and correction. The Department of Education required ASU to make major and immediate changes in its student financial assistance program.\nFor the 1982/83 academic year, responsibility for the Office was transferred to the Vice-President for Student Affairs, who hired a new director for the Office and requested that he conduct an evaluation and assessment of the organization and operation of the Office. The evaluation recommended extensive reorganization of the Office which resulted, inter alia, in the elimination as of December 31, 1982, of the position of Financial Aid Officer II, affecting appellant and one other employee. The reorganization created positions for three assistants, one director and three Financial Aid Officers I.\nAppellant was notified in writing that his position was being eliminated. He was also told he could apply for appointment to one of the new positions. All of the new positions were \"contract positions\" rather than classified staff positions, and required Board of Regents' approval each fiscal year. Appellant submitted a letter of intent to apply for four of the new positions, but conditioned his application with the requirement that he remain as a classified staff employee. ASU would not accept appellant's condition; however, he was offered a temporary position at ASU through June 30, 1983, with full benefits.\nAppellant filed a grievance in January 1983, claiming his \"employment contract was breached by termination of employment without cause and without due process.\" At the completion of the grievance procedure, appellant was informed that the elimination of his position was reasonable and proper. At that time, the offer of continued temporary employment for six months was repeated. The purpose of both offers of temporary employment was to allow appellant the opportunity to locate a full-time position commensurate with his qualifications either within or without ASU. Appellant filed a complaint with the Civil Rights Division of the Attorney General's office alleging that ASU engaged in unlawful employment practices in terminating his employment. The Civil Rights Division issued a \"no cause\" order and dismissed the charge. Appellant then filed suit, alleging breach of contract and wrongful discharge. The trial court granted appellee's motion for summary judgment, and this appeal followed.\nAppellant raises two issues: (1) the trial court erred when it ruled that the ASU Personnel Manual did not give him a contract right to continuing employment ruling that the manual alone resolved his breach of contract claim, and (2) the trial court erred in interpreting the provisions of the manual as creating an employment-at-will relationship. We affirm.\nThe parties agree that the ASU Personnel Manual was part of the employment agreement between ASU and appellant. See Leikvold v. Valley View Community Hospital, 141 Ariz. 544, 688 P.2d 170 (1984). Appellant did not have a separate, express contract of employment with ASU. The only \"contract\" employees are those on the faculty and in management positions who contract with the Board of Regents for employment for a specified period, generally one fiscal year at a time. Appellant was a classified staff employee whose employment at ASU was for an indeterminate period. He was therefore an \"at will\" employee, \"one hired without specific contractual term.\" Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 374, 710 P.2d 1025, 1029 (1985). The trial court was correct in ruling that appellant did not have *452 any contractual rights, apart from those which may have been created by the manual.\nAppellant contends that, according to the manual, he could only be discharged for job-related cause. Job-related cause is not at issue. ASU was required, as a result of the Department of Education audit, to take immediate remedial measures to correct organizational and managerial deficiencies in the Office. In the new organizational structure, the position occupied by appellant was eliminated and new positions were created. Appellant makes no allegation, nor would the record support one, that there was any ulterior motive behind the elimination of his position. The elimination of the position of Financial Aid Officer II was not a sub rosa maneuver to discharge appellant.\nA business decision to eliminate a position has been held sufficient basis to terminate the employee occupying that position. In Gianaculas v. Trans World Airlines, Inc., 761 F.2d 1391 (9th Cir.1985), the employee was terminated when his position, among others, was eliminated during a general reduction in the employer's work force necessitated by economic conditions. The court found that termination under those circumstances was justified. Similarly, in Clutterham v. Coachmen Industries, Inc., 169 Cal. App. 3d 1223, 1228, 215 Cal. Rptr. 795, 797 (1985), the court found that \"the parent corporation made a business judgment to reorganize ... with the result that appellant's services were no longer needed. This constituted good cause to terminate appellant.\"\nFlorida has reached a similar result. In Telesphere International, Inc. v. Scollin, 489 So. 2d 1152 (Fla. Dist. Ct. App. 1986), employer, for sound business reasons, decided to abandon the development of a particular product. As a result, the person hired to market that product was discharged. His employment agreement stated he could be terminated \"for cause.\" The court, in reversing a jury verdict for the employee on his contract claim, stated, \"We think it clear that Telesphere's bona fide decision to eliminate the portion of its business for which Scollin was expressly employed constitutes abundant `cause' for his discharge....\" 489 So. 2d at 1153. See also Grayson v. American Airlines, Inc., 803 F.2d 1097 (10th Cir.1986). We find that ASU had cause to discharge appellant.\nAppellant appears to contend that his \"course of dealing\" with ASU created a right to discharge only for cause related to his job performance. Appellant has pointed to no evidence, and we have found nothing in the record to support this contention.\nASU provided appellant the opportunity to apply for appointment to one of the new positions. He refused to do so, except on his terms. The other employee whose position was eliminated in the reorganization did apply and was appointed. ASU on two separate occasions offered appellant a temporary, full-time position, with all benefits, to enable him to find another position either at ASU or elsewhere. He declined the offers. The record shows that ASU attempted to accommodate appellant within the constraints of operating the university in the best interests of the students and the public.\nAffirmed.\nLACAGNINA, C.J., and HOWARD, P.J., concur.\n", "ocr": false, "opinion_id": 2604200 } ]

[ "723 F.2d 1158" ]

[ { "author_str": "Sprouse", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/723/723.F2d.1158.83-1441.html", "author_id": null, "opinion_text": "723 F.2d 1158\n Jenny E. MYRICK, Administratrix of the Estate of Baby BoyMyrick, Appellant,v.UNITED STATES of America, Appellee.\n No. 83-1441.\n United States Court of Appeals,Fourth Circuit.\n Argued Oct. 31, 1983.Decided Dec. 22, 1983.\n \n William D. Breit, Norfolk, Va. (Breit, Rutter &amp; Montagna, Norfolk, Va., on brief), for appellant.\n Paula M. Potoczak, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.\n Before RUSSELL, WIDENER and SPROUSE, Circuit Judges.\n SPROUSE, Circuit Judge:\n \n \n 1\n Jenny E. Myrick, administratrix of the estate of baby boy Myrick, appeals from the order of the district court dismissing her complaint against the United States of America under the Federal Tort Claims Act, 28 U.S.C.A. Secs. 2671-2680 (West 1976 &amp; Supp.1983) (FTCA). Her complaint alleged medical negligence by United States employees at the Naval Regional Medical Center, Portsmouth, Virginia, in administering prenatal care and causing the baby to be stillborn. Mrs. Myrick argues on appeal that this action lies under Virginia law for the wrongful death of the stillborn infant, because the Myrick infant was a \"person\" within the meaning of Virginia's wrongful death statute. We disagree and affirm.\n \n \n 2\n Mrs. Myrick first obtained obstetrical prenatal care at another naval medical facility and received adequate prenatal care there from March 25 to October 2, 1980. On October 3, 1980, however, she went to the labor and delivery deck of the Naval Regional Medical Center, Portsmouth, Virginia, reporting contractions at five-minute intervals. A physical examination indicated that Mrs. Myrick was about to give birth. Her baby's fetal heart tones were normal, and an ultrasound examination showed the baby to be healthy and fully-developed. When Mrs. Myrick did not give birth, she was sent home and asked to return later. She returned to the labor and delivery deck on October 8, 1980, and gave birth to the stillborn baby boy Myrick.\n \n \n 3\n In actions brought under the FTCA, federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred. Hess v. United States, 361 U.S. 314, 80 S. Ct. 341, 4 L. Ed. 2d 305 (1960); Vandergrift v. United States, 500 F. Supp. 229 (E.D.Va.1978). Mrs. Myrick was treated in Virginia; therefore, its law applies to her claim. Mrs. Myrick argues correctly that a number of states permit wrongful death actions under their statutes for the death of an unborn child. The law of Virginia, however, is settled to the contrary. The Supreme Court of Virginia in Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969), held that a stillborn infant is not a person within the meaning of the wrongful death statute. Since we are not at liberty to ignore the clear statement of the Virginia court that no action will lie for the death of a stillborn infant, we affirm the district court's dismissal of Mrs. Myrick's complaint.\n \n \n 4\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 429211 } ]

[ "724 F.2d 282" ]

[ { "author_str": "Winter", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/724/724.F2d.282.82-4217.1311.html", "author_id": null, "opinion_text": "724 F.2d 282\n 115 L.R.R.M. (BNA) 2084, 99 Lab.Cas. P 10,708\n NATIONAL LABOR RELATIONS BOARD, Petitioner,v.HEADS AND THREADS COMPANY, A DIVISION OF MSL INDUSTRIES,INC., Respondent.\n No. 1311, Docket 82-4217.\n United States Court of Appeals,Second Circuit.\n Argued April 29, 1983.Decided Dec. 9, 1983.\n \n William M. Bernstein, N.L.R.B., Washington, D.C. (W. Christian Schumann, William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of counsel), for petitioner.\n Herbert Burstein, New York City (Zelby &amp; Burstein, Randy L. Levine, New York City, of counsel), for respondent.\n Before FRIENDLY, KEARSE and WINTER, Circuit Judges.\n WINTER, Circuit Judge:\n \n \n 1\n The National Labor Relations Board (\"Board\") found that respondent Heads and Threads Company, a Division of MSL Industries, Inc. (\"Heads and Threads\" or \"Company\") violated Sections 8(a)(1), (3) and (5) of the National Labor Relations Act (\"Act\"), 29 U.S.C. Secs. 158(a)(1), (3) and (5). It seeks enforcement of the usual cease and desist order, an order directing reinstatement of striking employees, with back pay, and an order directing Heads and Threads to bargain with Local No. 210, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (\"Local 210\"). With the exceptions noted below, we grant enforcement.\n \n BACKGROUND\n \n 2\n At the time of the incidents in question, Heads and Threads employed twelve workers at its warehouse in Woodside, Queens. Talk of unionization at the facility occurred in May, 1980, when a warehouse worker, Lamar Johnson, discussed it with fellow workers. In June, Local 210's representative Al Bedell gave Johnson representation cards which Johnson in turn gave to his co-workers. Seven workers signed cards.\n \n \n 3\n In mid-June, two union supporters at the warehouse approached a third employee, Willie Ravenell, and asked him why he had never before attempted to organize. Ravenell explained that past organizers had been dismissed. Shortly thereafter, the two union supporters who had approached Ravenell were dismissed. A Heads and Threads supervisor, Roosevelt Richardson, said to Ravenell, \"You see what happens with union guys ....\" Further discussion of unionization among the employees occurred, however, and, in August, Richardson said to Ravenell, \"Hey man, you're trying to get a union in here. You know what happened when you all tried to get a union in here before, what happened to them guys.\" Ravenell cursed at Richardson in response.\n \n \n 4\n On September 9, eight employees met at the warehouse with Local 210's business agent, James Martinez, and told him they were being harassed because of their unionization efforts. Martinez once again had them sign representation cards and explained that this would allow him to go to their employer and to petition the Board for an election. On September 10, Martinez returned to the warehouse with another Local 210 representative, Julius Zaretsky. Together they spoke to the Company's manager, Gregory Svida, telling him that Local 210 represented a majority of the Company's Woodside employees and wanted to negotiate a contract. Svida replied that he had no authority to negotiate with the union and had to contact his superiors. Svida agreed to call the union representatives by September 15.\n \n \n 5\n Meanwhile, a series of confrontations occurred between Richardson and various employees. On September 11, Richardson told one Willie Gross that he was not working fast enough, and, when Gross offered an explanation, Richardson called him a liar. Gross, in turn, swore at the supervisor, and Richardson responded by \"punching out\" Gross' time card and firing him. In doing so, Richardson told Gross that he was \"not going to get the union.\" On the same day, Richardson told Ravenell that he, Ravenell, would have to \"pull orders\" as well as put up stock if he wished to retain his job. Ravenell had never before been required to do this additional work. Richardson warned him, \"The union can't help you now because you ain't in the union. I'll fire you right now and send you home.\"\n \n \n 6\n As a consequence of the Gross incident, the employees walked out in protest. Local 210, however, contacted Svida who had Gross reinstated. The other employees returned to work without loss of pay. The walkout had lasted two hours.\n \n \n 7\n The next day, September 12, Richardson walked around the warehouse holding a crowbar and saying, \"Damn Bill [Gross], if I get my hands on him I'm going to kill him.\" After work, Richardson was drinking with Ravenell and told him that he \"shouldn't be with the union\" because he was going to be promoted to assistant foreman, would soon receive the keys to the warehouse with the responsibility of closing the facility and would receive a raise. Ravenell did not take all the promises seriously.\n \n \n 8\n On Monday, September 15, the day on which Svida was to meet with Local 210 representatives, Ravenell punched into work at 7:45 a.m., fifteen minutes before his usual starting time. When Richardson said he must begin work upon punching in, Ravenell protested and refused, since he would not be paid for time worked prior to 8:00 a.m., and since he had never before been made to start work when he punched in early. Later that day, Richardson again confronted Ravenell and told him his coffee break could last only five minutes, as opposed to the usual ten. Richardson also told Lamar Johnson \"to speed up\" work or be discharged and Horace Ross that he was henceforth to advise Richardson every time he, Ross, went to the men's room.\n \n \n 9\n During that same day, Zaretsky and Martinez advised the employees that Heads and Threads was not going to recognize Local 210 as their bargaining representative. At that time, eight of the twelve employees had signed authorization cards. The employees said they were contemplating striking, and Martinez and Zaretsky advised them that it was their decision. Meanwhile, Ravenell was called to Svida's office where Svida told him \"You got a whole lot to lose messing around with the union cause you've got a lot of time in, your seniority, your profit sharing, plus your hospitalization.\" This did not deter Ravenell, because he felt harassed by Richardson, and shortly thereafter he and ten other unit employees went out on strike.\n \n \n 10\n On September 16, on the first full day of the walkout, a worried Ravenell returned to the warehouse to talk about his vacation pay and profit sharing with Alvin Zee, Heads and Threads' Vice President. Zee told Ravenell that \"the union idea is going to get you in a lot of trouble.\" Zee also told him that the company wanted to use him in their new Florida warehouse, a move Ravenell desired. Ravenell said he would return to work but only if the company executed a written promise not to discharge him. Nothing came of this discussion, however.\n \n \n 11\n Also on September 16, Heads and Threads sent a letter to the striking employees. The letter stated, inter alia, that \"It is our sincere hope that all employees will return to work and re-establish normal operations. The decision to return to work is up to you and you will not be discharged or disciplined for not returning to work. However ... the Company reserves its option to exercise its legal right to permanently replace you in order to continue business.\" This was followed by a second letter on September 18, which stated, inter alia, \"We still look forward to your return because a strike is a devestating [sic] experience for everyone involved.... We urge you to return to work by noon on Monday, September 22nd. We will begin the process of hiring new employees to permanently fill your job. This will leave you with only the right of being placed on a preferential hiring list. Please remember you will be replaced and not discharged.\"\n \n \n 12\n With the exception of one employee, Joseph Russo, none of the striking employees responded to these overtures. Russo, however, called Svida on September 21 and offered to return to work, but expressed fear of strikers on the picket line. Svida agreed to reinstate Russo and arranged to have security personnel escort him to and from the warehouse in a van. However, when the security vehicle arrived at Russo's home on September 22, Russo would not leave. Russo later explained to Svida that he would not come to the warehouse as he did not wish to do so surreptitiously or in the company of a guard. What was said at the end of the conversation was disputed. Svida maintained that Russo told him that he had accepted another job. Russo, on the other hand, testified that he told Svida only that if he could find employment elsewhere he would not return to the warehouse. Svida's version was confirmed in a letter to Russo on October 2, to which Russo did not reply.1 The ALJ, however, rejected Svida's version and the Board adopted this finding. The ALJ was persuaded by the fact that Russo never testified he had accepted another job in the interim--in fact Russo did not accept another job until December 1 (after the company rejected the union's unconditional offer to return to work). In addition, both Svida and Russo testified that the latter rejoined the picket line after September 22, which the ALJ found partially explained Russo's not responding to the October 2 letter. Yet the record shows that Svida received a phone inquiry from an insurance company checking an employment reference for Russo. It is thus apparent that Russo was certainly looking for another job.\n \n \n 13\n On November 10, Local 210's secretary-treasurer sent a telegram to Heads and Threads. The telegram stated:\n \n \n 14\n On behalf of each and every striking employee, we hereby make an unconditional offer on their behalf to return to work immediately. Please contact the undersigned or the individuals directly to arrange for their return to work immediately.\n \n \n 15\n The company declined to reinstate the employees in a timely fashion. Local 210 filed charges with the Board alleging violations of Sections 8(a)(1), (3)2 and (5)3 of the Act, 29 U.S.C. Secs. 158(a)(1), (3), (5), for threatening the discharge of employees who were on strike, for refusing to reinstate the employees who remained on strike and for refusing to bargain with the union. The cases were consolidated and heard by Administrative Law Judge (\"ALJ\") Steven Davis.\n \n \n 16\n On November 30, 1981, the ALJ issued his decision holding that Heads and Threads had violated Sections 8(a)(1), (3) and (5) of the Act. He found that the September 15 strike was an unfair labor practice strike in protest of employer harassment of workers. He also ordered Heads and Threads to cease and desist from its unlawful practices, to reinstate and make whole the striking employees and to bargain with Local 210. The Board affirmed the ALJ with certain modifications which need not be detailed.\n \n DISCUSSION\n 1. The Unfair Labor Practices\n \n 17\n Heads and Threads questions a number of the Board's findings, arguing that (i) Richardson's statements and threats to Gross, Ravenell, Johnson and Ross were not violations because the employees did not believe them; (ii) no promises of benefit conditioned on abandonment of the union were made to Ravenell by either Richardson or Zee; (iii) Gross was not discharged on September 11; (iv) Svida's and Zee's statements of September 15 and 16 were merely predictions protected by Section 8(c) of the Act, and (v) the Company's failure to reinstate the strikers did not violate the Act because economic strikers may be replaced. These claims are almost entirely factual and thus must be rejected if there is substantial evidence in the record to support the Board's conclusions. NLRB v. American Geri-Care, Inc., 697 F.2d 56, 59-60 (2d Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983). We address them seriatim.\n \n \n 18\n The record amply demonstrates that Richardson's June, August and September statements constituted interference in the exercise of the employees' rights to organize for purposes of collective bargaining. These pronouncements were often threatening, avowedly anti-union and coincided with the heating up of union organizational activity. Even if we were to assume that Richardson's animus toward Gross was longstanding and that neither Johnson nor Ross expected to be fired, such facts would not dictate a conclusion that no violation occurred. The record shows that changes in the work rules were imposed under threat of discharge and in the context of other coercive conduct by the Company. The threat against Gross came one day after he was fired and at the same time he was told he was not going to get a union. The Board could thus reasonably conclude that Gross was threatened in retaliation for his union activity. Similarly, contrary to the Company's argument, Richardson's statements to Johnson and Ross were neither \"off the cuff\" nor \"isolated.\" They were consistent with similar remarks made to others throughout the previous week and were made at a time when Local 210 representatives were due to visit the plant. An inference of anti-union animus and interference with the employees' organizational rights is clearly supportable.\n \n \n 19\n The Company also argues that Richardson's September 12 overtures were not \"promises\" in violation of the Act because they occurred while Richardson and Ravenell were drinking after hours and because they were not conditioned on abandonment of the union. The Company also argues that Zee's offer to Ravenell of employment in the Florida facility was not actionable because Ravenell had approached Zee, the two were friends and Ravenell had said he needed a job. Whether these activities were violations also depends upon factual inferences. As to Richardson's offer, there is substantial evidence to support the Board's inference that it was designed to coerce abandonment of the union. He said as much when he specifically told Ravenell that the new job would make him a company man and that he, therefore, would not be in the union. That the two were drinking at the time hardly detracts from the Board's conclusion. As to Zee's offer, it came immediately after he had told Ravenell \"the union idea is going to get you in a lot of trouble.\" The clear implication was that the trouble would end if he stopped supporting the union, and the offer of employment in Florida can be viewed as designed to facilitate Ravenell's cooperation. That Ravenell may have gone to Zee on his own and that nothing came of the offer does not negate the inference of anti-union animus.\n \n \n 20\n Equally fact-sensitive is the question of Gross' September 11 discharge. The evidence is clear that Gross was instructed to leave work and in fact did so. Because he was reinstated later that day, Heads and Threads contends Gross neither believed he was nor was in fact fired. Nevertheless, his employee card had been punched, and he had been told to leave. The other employees also thought Gross had been fired, since that was the reason for their two-hour walkout. The later reinstatement came not on Richardson's initiative but only after representatives of Local 210 had talked to Svida. Finally, since the discharge was the product of anti-union animus, a point hammered home when Richardson told Gross he \"was not going to get the union\" as he fired him, the Board properly found Section 8(a)(1) and 8(a)(3) violations.\n \n \n 21\n Heads and Threads contends that Svida's and Zee's statements in mid-September were merely protected predictions and not unfair labor practices under Section 8(a)(1). The facts, however, support the Board's conclusion. The statements themselves were not \"carefully phrased\" reports conveying the \"employer's belief as to demonstrably probable consequences beyond his control.\" NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). Rather, they were phrased as threats, such as warning Ravenell that he had a \"lot to lose messing around with the union\" and that the union would get him in trouble. The former statement was made in the context of Ravenell's specific inquiries about benefits and the latter in the context of a job offer which would have demanded relocation. A prediction or expression is protected under Section 8(c) only if it \"contains no threat of reprisal or force or promise of benefit.\" 29 U.S.C. Sec. 158(c). That this necessary condition was not satisfied is virtually self-evident.\n \n \n 22\n The Company also claims that the Board erred in concluding that work rule changes were in violation of Sections 8(a)(1) and (3) and that the failure to reinstate employee Russo violated Section 8(a)(3). We reject the first claim but accept the second.\n \n \n 23\n Heads and Threads claims that work rule changes never occurred and, alternatively, that an anti-union motive was not demonstrated. Again, however, both claims raise factual questions for which the Board's conclusions have record support. Richardson uttered instructions which were understood as work rule changes. The context and timing of the changes permit an inference of both antiunion bias and coercion in an attempt to chill the exercise of organizational rights.\n \n \n 24\n However, the failure to reinstate Russo did not violate the Act. In September, Russo asked for reinstatement with a guarantee of protection. The company accepted the offer and was willing to provide the guarantee as best it could. Russo then accepted reinstatement on those conditions. His subsequent stated decision to withdraw from the reinstatement agreement in order to pursue other employment and subsequent failure to respond to the October 2 letter absolved the Company of any obligation toward him. Having made the offer, outlined his concerns, accepted and then rejected the company's response ostensibly to find another job, Russo cannot now complain of the Company's later unwillingness to reassume an obligation which he himself had extinguished.\n \n \n 25\n The Company contends that the September 15 walkout was solely a strike for recognition and, therefore, the strikers could be replaced. However, the strike occurred in the context of a pattern of illegal employer harassment and after a previous walkout protesting that harassment. In light of this, the Board might reasonably conclude that the strike was at least partly motivated by the unfair labor practices and a protected activity. See Cagle's, Inc. v. NLRB, 588 F.2d 943, 950 (5th Cir.1979). That the strike may have stemmed from mixed motives does not deprive the employees of their right to reinstatement. NLRB v. Sea-Land Service, Inc., 356 F.2d 955, 965-66 (1st Cir.), cert. denied, 385 U.S. 900, 87 S.Ct. 205, 17 L.Ed.2d 131 (1966); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 269 (2d Cir.), cert. denied 375 U.S. 834, 84 S.Ct. 47, 11 L.Ed.2d 64 (1963). The Company's failure to reinstate the strikers upon the November 10 unconditional request for reinstatement thus violated Section 8(a)(3). See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956).\n \n 2. The Bargaining Order\n \n 26\n The remaining issue of significance is the propriety of the Board's bargaining order. In cases in which a cease and desist order and an election will not deter unlawful employer conduct, a bargaining order may issue \"to re-establish the conditions as they existed before the employer's unlawful campaign.\" NLRB v. Gissel Packing Co., 395 U.S. at 612, 89 S.Ct. at 1939. In Gissel, the Supreme Court stated that the appropriateness of a bargaining order turns on the nature of the unfair labor practices. Where the unlawful acts are \"outrageous\" and \"pervasive,\" a bargaining order can issue even in the absence of a finding that the union involved had a majority status. The Board may also issue a bargaining order \"in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process.\" Id. at 614, 89 S.Ct. at 1940. In this intermediate case, however, the Board must make a finding that the union at one point had a majority. In the third case, where the unfair labor practices are minor and less extensive, the Board may determine that they had such a slight impact on the election process that a bargaining order is not an appropriate remedy.\n \n \n 27\n The Board argues that a bargaining order is appropriate because this is an intermediate case in which the union had a card majority and the Company's unfair labor practices were serious and pervasive enough as to preclude the holding of a fair election. The ALJ and the Board emphasized that in a small unit such as this, the effect of an unlawful discharge was heightened and that the involvement of upper echelon management enhanced the coercive impact of the various unfair labor practices.\n \n \n 28\n While relying on its broad discretion to determine the appropriate remedy, the Board acknowledges that the caselaw in this Circuit requires the Board to make a particularly thorough analysis of the need for a bargaining order. See e.g. NLRB v. Jamaica Towing, Inc., 632 F.2d 208 (2d Cir.1980).\n \n \n 29\n A mandatory part of the required analysis relates to events occurring after the unfair labor practices were committed but which are relevant to the question of whether a free and fair election is possible. NLRB v. Marion Rohr Corp., 714 F.2d 228, 231 (2d Cir.1983). Even in the case of serious and coercive unfair labor practices, mitigating circumstances subsequent to the unlawful acts, such as employee turnover or new management, may obviate the need for a bargaining order. We have thus held that the Board may issue a bargaining order only after it has taken evidence and made appropriate findings as to the need for the bargaining order at the time it is issued, not at some earlier date. Id. at 231; see NLRB v. Pace Oldsmobile, 681 F.2d 99, 102 (2d Cir.1982) (per curiam).\n \n \n 30\n In the present case the Board did not consider circumstances subsequent to the unfair labor practices in issuing the bargaining order. Instead it relied solely upon the Company's failure to offer such evidence. In view of the Board's failure to follow our decisions, we decline to enforce the bargaining order.\n \n CONCLUSION\n \n 31\n We grant enforcement of the Board's order except as to the reinstatement of Russo and the bargaining order.\n \n \n \n 1\n The letter from Svida to Russo was as follows:\n October 2, 1980\n Mr. Joseph Russo\n 67-15 52nd Avenue\n Maspeth, New York 11378\n Dear Joe:\n This is to confirm our telephone conversation of September 22, 1980 that you have accepted employment elsewhere and will not be returning to Heads and Threads Company. You were a valuable employee and we are sorry to hear of your decision. We do, however, wish you the best of luck in the future.\n Very truly yours,\n HEADS AND THREADS COMPANY\n /s/\n Gregory J. Svida\n Branch Manager\n \n \n 2\n 29 U.S.C. Secs. 158(a)(1) and (3) state that:\n (a) It shall be an unfair labor practice for an employer--\n (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in ... this title;\n (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...\n \n \n 3\n 29 U.S.C. Sec. 158(a)(5) makes it an unfair labor practice for an employer \"to refuse to bargain collectively with the representatives of his employees ....\"\n \n \n ", "ocr": false, "opinion_id": 429394 } ]

[ "725 F.2d 1263" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/725/725.F2d.1263.83-1704.html", "author_id": null, "opinion_text": "725 F.2d 1263\n 26 Wage &amp; Hour Cas. (BN 984, 99 Lab.Cas. P 34,493\n James V. DOLAN and Milton L. Lee, individually and on behalfof all others similarly situated, Plaintiffs-Appellants,v.PROJECT CONSTRUCTION CORPORATION, A subsidiary ofStearns-Roger Corporation, Defendant-Appellee.\n No. 83-1704.\n United States Court of Appeals,Tenth Circuit.\n Jan. 20, 1984.\n \n 1\n Sander N. Karp, of Karp, Goldstein &amp; Stern, Denver, Colo., for plaintiffs-appellants.\n \n \n 2\n Bruce W. Sattler, Denver, Colo. (Warren L. Tomlinson and Jeffrey T. Johnson, Denver, Colo., with him on brief), of Holland &amp; Hart, Denver, Colo., for defendant-appellee.\n \n \n 3\n Before BARRETT and LOGAN, Circuit Judges, and BOHANON, Senior District Judge*.\n \n \n 4\n BOHANON, District Judge.\n \n \n 5\n Beginning in March, 1980, the defendant-appellee began construction on a 226 Million Dollar natural gas processing plant located approximately fifteen miles northwest of Evanston, Wyoming. This plant was known as the Amoco-Whitney Canyon Project. To construct this facility, defendant Project Construction Corporation employed approximately 1,500 hourly employees on a daily basis until the work was substantially completed in December, 1982.\n \n \n 6\n The plaintiffs herein were employed during the construction of the natural gas processing plant and allege that they were denied certain wages and overtime compensation pursuant to Secs. 6 and 7 of the Fair Labor Standards Act (hereinafter FLSA), 29 U.S.C. Secs. 206 and 207.1\n \n \n 7\n Upon the filing of the complaint, plaintiff served upon the defendant a set of interrogatories including the following demand for information:\n \n \n 8\n \"State the name and last known address of each employee of the defendant who was employed by said defendant at the the Amoco-Whitney Canyon Project near Evanston, Wyoming and who was employed at said site within the last two years including the date of hire, date of termination, days and hours of each day worked, the wage paid said employee on each date of employment within the last two years or until terminated or laid off, the classification or job description of said employee, and said employee's last known address. In lieu thereof, the defendant may produce copies of employment, payroll, and/or hourly time records which reflect the above information pursuant to the above rule.\"\n \n \n 9\n Plaintiffs' First Set of Interrogatories.\n \n \n 10\n Defendant immediately moved for a Protective Order in lieu of answering the interrogatories. Plaintiffs, meanwhile, moved for Leave to Give Notice to Class Members. Both of these motions were set before the federal magistrate pursuant to an Order of Reference by the district court.\n \n \n 11\n During the hearing on the motions, the magistrate held that the power to authorize the sending of notice to putative plaintiffs in collective employee suits under the FLSA could not be inferred from Section 216(b), 29 U.S.C. Sec. 216(b), which does not expressly provide for such notice. He therefore denied plaintiffs' Motion for Leave to Give Notice.\n \n \n 12\n Upon making the determination that notice could not be given, the magistrate held that no purpose would be served by the defendants' response to the first set of interrogatories and consequently granted the protective order.\n \n \n 13\n The plaintiffs sought review of the magistrate's ruling before the district court and upon review of the record, the district court issued an Order Affirming the Magistrate.2\n \n \n 14\n Pursuant to the provisions of 28 U.S.C. Sec. 1292(b) plaintiffs-appellants present this interlocutory appeal from the district court order denying the sending of notice to potential plaintiffs in a collective action described in 29 U.S.C. Sec. 216(b). We affirm.\n \n \n 15\n Initially, this case must be distinguished from a class action under Rule 23 of the Federal Rules of Civil Procedure. Rule 23 provides that upon the establishment of a class a subsequent judgment binds all members of the class unless they have expressly opted out of the class action. Therefore, due to the res judicata effect of a class action under the provisions of Rule 23, notice to the putative class of the pendency of the action is required to protect the individual interests of the class members.\n \n \n 16\n However, 29 U.S.C.A. Sec. 216(b) (hereinafter Sec. 216(b)) provides, inter alia:\n \n \n 17\n \"... An action to recover the liability prescribed in [this act] ... may be maintained ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought....\"\n \n \n 18\n Therefore, the principal difference between a Rule 23 class action and a Sec. 216(b) collective action is that the similarly situated employee must \"opt-in\" to be bound by a judgment in a Sec. 216(b) suit. Correspondingly, Sec. 216(b) fails to provide for mandatory notice to similarly situated employees since no individual rights are jeopardized by the FLSA procedures. See Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir.1977); LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286 (5th Cir.1975).\n \n \n 19\n While this court has never ruled on the procedural ramifications of Sec. 216(b), the issue has been before other circuit courts. The Ninth Circuit in Kinney Shoe Corp. v. Vorhes, 564 F.2d 859 (9th Cir.1977), was the first circuit to examine the question of notice in the Sec. 216(b) situation. Kinney held that neither the named plaintiffs, their counsel, nor the court has the power to provide notice to similarly situated employees. See also Partlow v. Jewish Orphans' Home of Southern Cal., 645 F.2d 757 (9th Cir.1981).\n \n \n 20\n The second circuit was the next to consider the issue of notice. In Braunstein v. Eastern Photographic Laboratories, Inc., 600 F.2d 335 (2nd Cir.1979) the court held that Sec. 216(b) permitted court sponsored notice in appropriate cases.\n \n \n 21\n Finally, the seventh circuit examined the issue and a third viewpoint on Sec. 216(b) notices was formulated. In Woods v. New York Life Ins. Co., 686 F.2d 578 (7th Cir.1982) the court ruled that plaintiffs and their counsel can communicate with prospective parties under terms and conditions prescribed by the court, but the notice must not bear the imprimatur of the court.\n \n \n 22\n Two other circuits have been presented the issue but have declined to choose between the various judicial interpretations of Sec. 216(b). See Haynes v. Singer Co., Inc., 696 F.2d 884 (11th Cir.1983); Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir.1982).\n \n \n 23\n This court is now presented with the issue and must formulate an opinion on the procedural scope of a Sec. 216(b) action.\n \n Historical Background\n \n 24\n The relevant portions of Sec. 216(b) were originally enacted as Section 5 of the Portal-to-Portal Act of 1947, Pub.L. 49, ch. 52, 61 Stat. 87. The primary purpose of the Portal-to-Portal Act was to remedy deficiencies in the interpretation and procedural management of the FLSA as originally formulated in 1938.\n \n \n 25\n In its original form, the FLSA made provision for an action by an employee in behalf of himself and other employees similarly situated. However, after decisions by the United States Supreme Court interpreted the FLSA to provide for compensation that historically had not been reimbursed, see Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), a virtual flood of litigation ensued in the form of class actions. Perceiving the flood of litigation as a serious threat to interstate commerce the Congress moved to limit the applicability of the FLSA to certain industry practices. Particularly relevant here, the Congress also limited the class action procedures for filing representative actions. In describing the financial burdens affecting interstate commerce, the House of Representatives' Report stated:\n \n \n 26\n \"The procedure in these suits follows a general pattern. A petition is filed under section 16(b) [providing for representative actions] by one or two employees in behalf of many others. To this is attached interrogatories calling upon the employer to furnish specific information regarding each employee during the entire period of employment. The furnishing of this data alone is a tremendous financial burden to the employer.\"\n \n \n 27\n H.R.Rep. No. 71, 80th Cong., 1st Session 4 (1947); 1947 U.S.CODE CONG. &amp; AD.NEWS, (80th Cong., 1st Session) 1029, 1032.\n \n \n 28\n Not only did Congress disapprove of the normal discovery practices associated with class actions but it also made the specific finding that unless the provisions of the FLSA of 1938 were changed \"the courts of the country would be burdened with excessive and needless litigation and champertous practices would be encouraged.\" Sec. 1(a)(7) Portal-to-Portal Act of 1947.\n \n \n 29\n The opt-in language of Sec. 216(b) was a direct result of this clear congressional dissatisfaction with the original class action provisions of the FLSA. In fact, the relevant language of Sec. 216(b) was entitled \"Representative Actions Banned\" in the Portal-to-Portal Act.\n \n \n 30\n Clearly, Congress sought to limit the nature of a class action suit based upon an alleged FLSA violation. While still providing for collective and representative actions, it intended to severely limit the burden on the defendant and the participation of the court. Indeed, within the policy statements of the Portal-to-Portal Act of 1947, the following statement is included:\n \n \n 31\n Section 1(b)(3)--\"[A policy of this Act is] to define and limit the jurisdiction of the courts.\"\n \n \n 32\n Further evidence of the intent to remove the court from active participation in a representative action under Sec. 216(b) is Congress' careful drafting to avoid due process difficulties for potential class members who do not participate in the filed representative actions. See Webster Eisenlohr Inc. v. Kalodner, 145 F.2d 316 (3rd Cir.1944).\n \n Notice\n \n 33\n It is upon this historical background that we must structure procedural rules for the administration of actions based upon Sec. 216(b).3 The policies behind the Sec. 216(b) action are almost diametrically opposed to those involved in a Rule 23, Fed.R. of Civ.Proc. action. The Rule 23 action encourages \"litigation in which common interests, or common questions of law or fact prevail, disposed of where feasible in a single lawsuit.\" Rodgers v. U.S. Steel Corp., 508 F.2d 152, 163 (3rd Cir.1975). This policy of encouraging a single suit is served by the opt-out procedure. However, the Sec. 216(b) action tends to discourage collective litigation by virtue of the requirement of an affirmative act by each plaintiff.\n \n \n 34\n By its very nature, the role of the court is necessarily active in a Rule 23 action. Conversely, the court in a Sec. 216(b) action has only passive duties and limited jurisdiction. Therefore, the role of the court in the Sec. 216(b) action must be supervisory only. It may not order the production of names of all possible plaintiffs for the sole purpose of establishing or notifying the class.4 Their individual rights are not in jeopardy, and the burden on the defendant is often great. In fact, the specific burden used by Congress in illustrating the unfair discovery burden placed upon the employer consists of interrogatories exactly like those submitted in this case.\n \n \n 35\n Similarly, the court is without authority to issue notice to all potential plaintiffs. As the court so aptly explains in Kinney, supra, the court need not protect the due process rights of the non-joining parties and no other function of the court is authorized by statute.\n \n \n 36\n The danger of judicial approved notice is apparent even to courts that interpret Sec. 216(b) as providing for discovery for purposes of contacting other plaintiffs. In Woods, the court stated:\n \n \n 37\n \"But we think it improper for the district court to direct that the notice go out on its letterhead, over the signature of the clerk of court or other judicial officer. We can think of no good reason for apparent judicial sponsorship of the notice, at a stage in the litigation when there has been no determination that the plaintiffs' allegations have any merit; and we can think of a good reason against it, which is that the judicial imprimatur is likely to be misunderstood as a representation that the suit probably has merit.\"\n \n \n 38\n To actively involve the trial court in the sending of notice would necessarily involve engrafting certain additional class action procedures to protect the administration of the case from improper certification and issuance of notice. We refuse to begin this involved process without clear congressional guidance.\n \n \n 39\n The court in Kinney is undoubtedly correct in its assessment that as originally drafted the Portal-to-Portal Act would prohibit the sending of notice by either party plaintiff or plaintiff's counsel. This is evident in the finding in Section One of the Portal-to-Portal Act that the discouragement of champerty was a goal that was envisioned by the Act. However, recent United States Supreme Court cases regarding legal communication dictate the allowance of a level of reasonable communication by the plaintiff and counsel with those parties he can discover without judicial assistance.\n \n \n 40\n The litigants envisioned by Congress in 1947 were primarily interested in pecuniary gain; however, this is not necessarily the situation today. Today Sec. 216(b) actions not only encompass FLSA actions but by specific incorporation are also contained in other remedial legislative acts such as the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. Thus the distinction between solicitation of clients for political objectives and solicitation of clients for pecuniary gain may often blur when applying this statute. Therefore, the court should not be overly anxious to restrict communication with the potential class based upon the economic facts of a particular case. See In re Primus, 436 U.S. 412, 426-31, 98 S.Ct. 1893, 1901-04, 56 L.Ed.2d 417 (1978); United Transportation Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971).\n \n \n 41\n Additionally, \"an order limiting communications between parties and potential class members should be based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.\" Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981). Although, Gulf Oil is a case involving a Rule 23 action, the principle of law is applicable to all representative actions.\n \n \n 42\n Moreover, the court should be particularly hesitant to restrict written communication in light of the ability to monitor such communications for statements that are likely to deceive. See In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982); Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).\n \n \n 43\n But the gulf that separates the restriction of protected communication and active assistance of plaintiff in seeking fellow parties is wide. Under no theory of legal communication is the court justified in undertaking an active role in either discovering or contacting additional parties. The role of the court in Sec. 216(b) actions is one of administering and monitoring the litigation process to ensure a fair trial for all parties.\n \n \n 44\n Therefore, the district court's affirmance of the rulings by the magistrate was proper and is hereby AFFIRMED.\n \n \n \n *\n Honorable Luther Bohanon, Northern, Eastern and Western Districts of Oklahoma, sitting by designation\n \n \n 1\n Pending in the trial court is the issue of whether the time each employee spent on the worksite before the start of the work day but after delivery by company transportation is compensable by the employer. See Dolan v. Project Const. Corp., 558 F.Supp. 1308 (D.Colo.1983)\n \n \n 2\n Although the district court seemed to disagree with the magistrate's interpretation of the legal standard, he determined his scope of review was limited. He stated in his order in Dolan, 558 F.Supp. at 1312:\n \"The magistrate in this action was confronted with a conflict in persuasive authority and no binding precedent. I am not prepared to rule that because he adopted one posistion in the conflict rather than the other that his ruling is clearly erroneous or contrary to law. Error, if any, would be obscure rather than clear and where the law is unsettled, the ruling is not contrary. Deference to the office of the magistrate under these circumstances and the provisions of Local Rule 17(c)(3) require that I affirm the decision of the magistrate.\"\n \n \n 3\n We recognize that the seventh circuit in Woods looked at much of the same historical language and came to a different conclusion as to the import of the language. We specifically reject their analysis as unpersuasive. See Woods, 686 F.2d at 581\n \n \n 4\n As Kinney noted, 564 F.2d at 864, under the Fed.R. of Civ.Proc. the trial court retains broad discretionary power to control discovery in these cases. Discovery into the patterns and practices of the employer may uncover violations of the statute affecting other employees. We do not intend to limit the discovery that would be normally available in cases of this sort, even though it might reveal the identities of other potential plaintiffs\n \n \n ", "ocr": false, "opinion_id": 430573 } ]